Full Judgment Text
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PETITIONER:
COMPTROLLER & AUDITOR GENERAL OF INDIA & ORS.
Vs.
RESPONDENT:
FALID SALTAR
DATE OF JUDGMENT: 07/04/2000
BENCH:
V.N.Khare, Doraiswamy Rgjil
JUDGMENT:
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JUDGMENT
V.N.KHAREJ.
Farid Sattar, respondent herein, joined as an Auditor
in the Office of the Accountant General (A & E), West Bengal
on 16.2.1982. Consequent on the bifurcation of Audit and
Accounts, the respondent was transferred to the Office of
the Accountant General (A & E), West Bengal on 1.11.1985.
The respondent opted for the accounts wing and as such he
was retained there and subsequently promoted to the post of
Senior Accountant on
4.12.1987. In December, 1990 the respondent while
officiating on the post of Senior Accountant applied for
mutual transfer with one Shri Paresh Ghosh, Senior
Accountmit, working in the Office of the Senior Deputy
Accountant General (A & E). Sikkim. As mutual transfer was
not permissible in the cadre of Senior Accountant, the
respondent was advised to apply for unilateral transfer
after seeking reversion to the lower post of Accountant as a
direct recruit. In pursuance of the advice tendered, the
respondent applied for unilateral transfer in the cadre of
Accountant foregoing the status of a Senior Accountant, in
the Office of the Senior Deputy Accountant General (A & E),
Sikkim in July, 1992 and he was permitted to take such
transfer on certain terms and conditions. The pay scale of
Senior Accountant at the relevant time was Rs. 1400-2600.
whereas, the pay scale of Accountant was Rs. 1200-2040.
The respondent having accepted the terms and conditions of
unilateral transfer was posted as an Accountant in the pay
scale of Rs. 1200-2040. However, his pay was erroneously
fixed at Rs. 1560/-, which he was drawing in the pay scale
of Rs. 1400-2600 prior to his reversion to the lower post.
Subsequently, it was found that the fixation of pay of the
respondent at the stage of Rs. 1560/- was due to some
mistake and, therefore, by a Memorandum dated
8.11.1994 the pay of the respondent was directed to be
re-fixed and a further direction for recovery’ of excess
payment made to the respondent was also issued. It is at
this stage the respondent filed Original Application before
tlie Central Administrative Triblinal, Calcutta, challenging
the Memorandum dated 8.11.1994 contending that the pay which
he was drawing as Senior Accountant viz.. Rs. 1560/- in
the pay scale of Rs. 1400-2600 has to be protected even if
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he was reverted to tlie lower post of Accountant on transfer
and re-fixation of his pay at a lower stage, and recovery of
the alleged excess payment of salary is unwarranted. The
appellants herein disputed the contentions of the
respondent, inter alia, on the ground that the respondent
was bound by the terms and conditions of tlie unilateral
transfer and as on acceptance of such terms and conditions,
tlie respondent was required to tender technical resignation
from tlie post of Senior Accountant and had to join as a
direct recruit on the lower post of Accountant ranking
junior most in the cadre of Accountant. It was also
contended that on such a transfer the pay of the transferee
is not required to be protected and his pay was to be fixed
as a direct recruit on the lower post in which post he was
reverted. The tribunal took the view that since unilateral
transfer is not contemplated by Fundamental Rules
(hereinafter referred to as ’F.R") and as such, in a case
like the present one the respondent has to be treated
as having gone on transfer on request and. therefore, his
case was to be governed by F.R.22 (1) (a) (3). In view of
the provisions of above Rules, tile tribunal quashed the
impugned order and allowed the application of the
respondent. It is against the said judgment and order of
the tribunal the appellants are in appeal before us.
Learned counsel for the appellants urged that the
tribunal fell in error in applying F.R.22 (1) (a) (3) in the
present case. The argument is that the pay of the
respondent was required to be fixed in accordance with the
terms and conditions which were accepted by the respondent.
Learned counsel tlien referred to the terms and conditions
of the unilateral transfer of the respondent. Learned
counsel for the respondent urged that unilateral transfer
not being contemplated in F.R., the transfer of the
respondent necessarily has to be governed by F.R. and in
the present case it is F.R. 22 (l)(a) (3) which is
applicable, and on an application of the said rule, the
judgment and order of the tribunal has to be affirmed.
In order to appreciate the arguments of the learned
counsel for the parties, it is necessary to refer F.R. 22
(1) (a) (2) (3) and the relevant portions are extracted
below:
"FR 22 (1) (a) (2): When the appointment to the new
post does not involve such assumption of duties and
responsibilities of greater importance, he shall draw’ as
initial pay’, tile stage of the time-scale which is equal to
ins pay in responst of the old post held by him on regular
basis, or, (ft here is no such stage, the stage next ahcn’e
his pa}’ in respect of the old post lield by him on regular
basis:
FR 22 (1) (a) (3): When appointment to the new post
is made on his own request under sub-rule (a} of Rule 15 of
the said rules, and tile maximum pa)’ in the time-scale of
that post is lower than his pay’ in respect of the old post
held regularly, he shall draw that maximum as his initial
Pay’- "
The relevant terms and conditions of unilateral
transfer, as accepted by the respondent, are extracted
below:
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"The transfer mil be not in public interest and as
such he will not be entitled to any joining time, joining
time pay or T.A.
He will be assigned junior to the junior most
Accountant on the date he reports for duty in this office
for all intents and purposes.
He shall have to submit his technical resignation from
the post of Senior Accountant in the Office of the A.G.(A &
E), West Bengal, Calcutta, in order to join Accountant’s
post in the Office of the Senior Dy. Accountant General ( A
& E), Sikkim, Gangtok.
He shall have no right to seek re-transfer to his
parent office or to any other office.
On unilateral transfer he is required to pass whatever
departmental examination as prescribed by the relevant
recruitment rules.
This pay shall be regulated in accordance with the
relevant rules in force in his U.T. as Accountant"
It is no doubt true that unilateral transfer which is
said to be coined by the appellants is not contemplated
under the Fundamental Rules What is contemplated 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 (1) (a) (2)
provides that, when an employee is transferred to a new
post, which does not involve assumption of duties and
responsibilities of greater importance, he shall draw as
initial pay, the stage of the time-scale which is equal to
his pay in respect of the old post held by him on regular
basis. Thus F.R.22(l)(a)(2) would be applicable where there
is an ordinary transfer which is not by way of reversion to
the lower post and in such a case, the pay of an employee on
transfer to a new post has to be protected. Fundamental
Riile22(l)(a)(3) is applicable where an employee is
transferred to a new post on his own request under sub-rule
(a) of Rule 15, and further in such 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 Ins
pay in respect of the old post held regularly, he is
required to draw that maximum as his initial pay. For
illustration - an employee working in a pay scale ofRs.
1400-2600 was drawing pay at the stage ofRs, 2040 and he is
transferred on his own request not involving reversion to a
post which carries pay scale ofRs. 1200-2040. in such a
case. the maximum pay which lie was drawing viz.. Rs.
2040 has to be protected on the transferred post which
carries a pay scale ofRs. 1200-2040.’-. It is not the case
here. Here. what we find is that the respondent on his own
volition sought transfer on certain terms and conditions
accepted by him. The terms and 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 post
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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 was further
required to forego any benefit of passing any departmental
examination while working in the higher post. In such a
situation, the pay of the respondent 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 direct recruit in the lower post.
Under the terms and conditions of tlic transfer, the
pay which the respondent was drawing on higher post was not
required to be protected when he joined the lower post of
Accountant.
For the foregoing reasons, we are of the view that the
pay of the respondent, as fixed earlier, was correctly
relfixed by Memorandum dated 8.11.1994. We, therefore, find
that the judgment and order of the tribunal is not
sustainable in law and the same deserves to be set aside.
We order accordingly. The appeal is allowed. There shall
be no order as to costs.