Holding

The appellant was only deputed to the post of Election Supervisor; FR 22(D) does not apply to deputations, and the recovery of excess salary is unlawful.

Summary

BabulaL Jain, an Accountant in the Madhya Pradesh Collectorate, was deputed to the post of Election Supervisor. An Office Memorandum dated 9 February 1999 stipulated that such transfers were to be treated as postings, with pay fixed at the lower post and not under Fundamental Rule 22(D) or 22(A) of the M.P. Civil Services (CCA) Rules. The Collector later added the word "promotion" to the appointment via a corrigendum, and Jain's salary was fixed at the higher scale; the Finance Department later re‑fixed his pay to the lower scale and recovered Rs 22,000 as excess. Jain challenged the recovery, arguing that the memorandum was ultra vires and that he could not be promoted because his substantive post did not provide a promotion channel. The Supreme Court held that the appointment was a deputation, not a promotion, and that FR 22(D) does not apply to deputations; consequently, the recovery was unlawful. The Court ordered a refund of Rs 22,000 and directed that his retirement benefits be calculated as if he had retired as an Accountant on the re‑fixed pay, exercising its power under Article 142 of the Constitution.

Issues considered

Whether the Office Memorandum of 9 February 1999 is ultra vires Fundamental Rule 22(D) of the M.P. Civil Services (CCA) Rules.
Whether the appointment of the appellant as Election Supervisor constituted a promotion under FR 22(D) or merely a deputation.
Whether the State could recover the excess salary without a show‑cause notice.
How the appellant's retirement benefits should be calculated in view of the re‑fixed pay.

Legislation cited

Administrative Tribunals Act, 1985s. Section 21(b)
Constitution of Indias. Article 142

Subjects

deputationpromotionpay fixationFundamental Rule 22(D)salary recoveryretirement benefitsArticle 142M.P. Civil Services (CCA) RulesAdministrative Tribunal

Judgment

;(
A BABULAL JAIN
v.
STA TE OF M.P. AND ORS.

APRIL 24, 2007

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Service Law:

Deputation to a higher post-Fixation of pay-Instructions of State
c Government that transfer from one Department to another would be treated
as posting and not appointment-Pay of employee fixed as per FR 22(D)-
Later pay refixed and excess payment ordered to be recovered-Held, the
substantive post held by employee did not provide for channel of promotion
to the post he was posted on Deputation-For all intent and purpose he was
D deputed to that post-As such, he could not have been placed on a higher
scale ofpay-FR 22(D) is not applicable to a case of deputation-However,
in exercise ofjurisdiction under Article 142 of the Constitution, Department r
directed to refund the amount recovered from the employee-Fundamental
Rules-FR 22(D)-Constitution of India, 1950-Article 142.

E Appellant, an Accountant in the Collectorate, was posted on deputation
to the post of Election Supervisor. On 9.2.1999, State of Madhya Pradesh
issued an Office Memorandum to the effect that transfer from one Department
of the Government to the other Department would be treated as posting and
not appointment, and on being appointed on higher post, pay would not be fixed
under FR 22(D) or 22(A) of M.P. Civil Services (CCA) Rules, but on the pay
F being drawn by him on the lower post. On 13.12.2000 the Collector added the
word "promotion" in the offer of appointment of the appellant by corrigendum.
• "-

He was relieved of his duties as Election Supervisor with effect from
31.12.2001, the date on which he attained the age of superannuation.
Meanwhile, in view of the circular dated 9.2.1999, his pay was reflxed in the
G pay scale of his substantive post by order dated 26.12.2001, and the excess
payment made to him was directed to be recovered. The appellant challenged /.-
the said order and, ultimately, the High Court dismissed his writ petition
holding that since the employee had been given the higher scale of Election
Supervisor on which !JOSt he was not promoted as per law, there was no

H 514
BABULALJAINv. STATEOFM.P. 515
illegality in the order of refixation of his pay and there was no question of A
quashing the recovery.

In the .l!..Ppeal filed by the employee, it was contended that t,hc Office
Memorandum dated 9.2.1999 was ultra vires Fundamental Rule 22(0) and the
M.P. Civil Services (CCA) Rules; and that, in any case, recovery could not
have been made from his salary. B
Allowing the appeal in part, the Court

HELD: 1. The substantive post held by the appellant did not provide for
a channel of promotion to the post of Election Supervisor and, as such, the
Collector of the District could not have, in law, appointed him on the post of C
Election Supervisor and later issue a corrigendum that he had been promoted
thereto. Thus, for all intent and purport, he was only deputed to that post.
Having been placed on deputation to a post which carries higher
responsibilities, some allowance could have been granted in his favour, but
he could not have been placed on a higher scale of pay. It is, therefore, not a D
case that the Finance Department of the State of Madhya Pradesh could not
have issued a clarification in this behalf as ultimately the financial burden
\ would be on the State. Fundamental Rules 22(D) of the Rules refers to regular
promotion to a post and is not applicable to a case of deputation.
[Para 10, 11, 12 and 13] [519-B-G)
E
2. However, in a case of this nature, no recovery should be directed to
be made. Appellant has discharged higher responsibilities. It is not a case
where he obtained higher salary on committing any fraud or
misrepresentation. The mistake, if any, took place on a misconception of law.
He has since retired. A sum of Rs. 22,000/- has been recovered from him.
Such recovery has been effected without issuing any show cause notice. His F
case on merit in this behalf was not considered by the Government and even
by the Tribunal. The respondents shall refund the said sum of Rs. 22,000/- to
the appellant and also direct his retirement benefit to be calculated as if he
had reached the age of superannuation only as an Accountant on the re-fixed
pay and not on the scale of pay of Election Supervisor. This direction is issued G
in exercise of jurisdiction under Article 142 of the Constitution of India.
[Paras 14 and 17) (519-H; 520-A-B; C-D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2125 of2007.

From the Judgment and 0rder dated 27.04.2005 of the High Court of H
516 SUPREME COURT REPORTS [2007) S S.C.R.

A Madhya Pradesh, at Indore Bench in W.P. No. 2032 of 2003.
Paramjit Singh Patwalia, Amanpreet Singh Rabi, Manjeet Singh, Harikesh
Singh, T.V. George, Satish Kumar and Ashwani Bhardwaj for the Appellant.

G.P. Singh, Sushma Singh, Monohar Singh Bakshi, Debasis Misra, Naveen
B Sharma and B.S. Banthia for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted

C 2. The question which has been raised in this appeal arising out of a
judgment and Order dated 27.4.2005 passed by the Madhya Pradesh High
Court in Writ Petition (Civil) No. 2032/2003 centers around the interpretation
of FR 22(0) of the M.P. Civil Services (CCA) Rule. Appellant was working as
an Accountant. He was purported to have been recommended for his alleged
promotion to the post of Election Supervisor by the Collector, District Dewas
D (MP) in terms of a letter dated 25.7.!998 addressed to the Chief Electoral
Officer, Bhopal in the following terms:
)
"Election Supervisor posted in District Dewas has since
superannuated. For filing of this vacant post, name of Shri R.B. Puranik
was recommended to be promoted to the post election supervisor vide
E OM Sr. No. 1374/estab/98 dated 12.6.98. Thereafter Shri Babula! Jain,
accountant, vide his application dated 25.7.98 has consented to be
appointed to the post of election supervisor.

Thereafter, at the concerned Seniority list, being at serial No. 4 Mr.
Babula! Jain is senior to Mr. Puranik and experienced in election
F related work.

Photo Copy of his ACRs are enclosed.

Thereafter it is recommended that Shri Babula! Jain, accountant,
be promoted to the post of election supervisor.
G Encl :- Sd/-
Photo Copy of ACRs Collector
For the Years 93-97 District : Dewas (M.P.)"
3. The said recommendation having been accepted, he was appointed
to the said post in the pay scale of Rs. 4000-100-6000 until further orders.
H
BABULALJAJNv. STATEOFM.P. [S.B.SINHA,J.] 517
4. He was later on put in the pay scale of Rs. 4500-125-7000 with one A
increment as his personal pay. The Government of Madhya Pradesh, however,
issued a circular letter on or about 9.2.1999 in regard to the fixation of pay
on appointment to the post involving higher duties and responsibilities,
stating;

"When any Government servant is appointed on higher post from one B
Department of Government to another department of the Government,
the following guidelines are being issued State Government regarding
pay fixation after careful consideration:

i. Transfer from department of the Government to another on higher
post shall not be treated as appointment rather posting. C
ii. On being appointed on higher post the pay fixation of the concerned
Government servant shall not be fixed under FR 22(0) or 22(A) rather
. on pay being drawn by him on lower post."

5. On or about 13.12.2000, the Collector added the word "promotion" in D
his offer of appointment by way of Corrigendum after the words "until further
orders";

"In the light of the objection dated 24.10.2000 raised at the time of pay
fixation of Sh. Babula! Jain, then Asst. Grade-II/Accountant/now,
Election Supervisor, Election Branch, Collecotrate, Dewas (M.P.) partial E
modification of OM Sr. No. 28.9.98/estab/98 Dewas dated 28.9.98 vide
which he was appointed as Election Supervisor on the sanction of the
Chief Election Officer (M.P.) the word "promotion" is added after until
further order. Rest part of the order shall be effective as usual."

6. On and from 1.1.2000 he started drawing a salary of Rs. 6625/- per F
month. He was relieved of his duties as Election Supervisor with effect from
31.12.2001 by an Order dated 5.10.2001. On or about 26.12.2001, his pay was
directed to be re-fixed in the light of the said Office Memorandum dated
9.2.1999 as on 1.1.2000 at Rs. 6000 +Rs. 179 as personal pay. It was directed
that excess amount paid to him be recovered. He attained the age of G
superannuation on 31.12.2001.

7. Questioning the said order, he filed an original application before the
Madhya Pradesh Administrative Tribunal.

8. Having regard to the fact that the appellant had filed a representation H
518 SUPREME COURT REPORTS [2007] S S.C.R.

A in respect of the said Order dated 13.12.2001 before the ChiefElectoral Officer,
Bhopal on 22.12.2001, the Tribunal in view of Section 21(b) of the Administrative
Tribunals Act, 1985 dismissed the said application summarily. A Writ Petition
filed thereagainst has been dismissed by the High Court by reason of the
impugned judgment stating;

B "It is clear from the reply that the original post of the petitioner is
Asstt. Grade-II, which is equivalent to Supervisor/Asstt.
Superintendent. The petitioner had been given the pay-scale of
Accountant/Election Supervisor, on which post he was not promoted
as per law. In such circumstances, there is no illegality in the order
of refixation of pay. The petitioner was himself working as Accountant.
c In such circumstances, there is no question for quashing the recovery."

9. Mr. Manjit Singh, the learned counsel appearing on behalf of the
petitioner raised the following contentions in support of this appeal.

(i) The purported office memorandum dated 9.2.1999 is ultra vires
D Fundamental Rule 22(D) of the Rules, in terms whereof, promotion
granted to the petitioner and consequent fixation of his salary on a
higher scale of pay could not have been directed to be rescinded
relying on or on the basis thereof and

(ii) In any event no recovery could have been directed to be made
E from the salary of the appellant.

Rule 22(0) of the M.P. Civil Services (CCA) Rule reads as under:-"

(I) Notwithstanding anything contained in these rules where a Govt.
holding a post in a substantive temporary or officiating capacity is
F promoted or appointed in substantive temporary or officiating 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 of the higher post shall be fixed at the stage next
above the pay notionally arrived at by increasing ( his pay in respect
G of the lower post by one increment at the stage at which such pay
has accrued)."

10. It is not the case of the appellant that the post of Assistant Grade-
n provides for a channel of promotion to the post of Election Supervisor.
Appellant, indisputably was an employee working in the Collectorate having
H been appointed by the State of Madhya Pradesh. A Collector of a District has
BABULALJA!Nv. STATEOFM.P.[S.B. SINHA,J.] 519

A
many functions; one of them being to oversee holding of elections in his
district as an Electoral Officer. He, therefore, although could have recommended
for the posting of the appellant on the post of Election Supervisor, the
question of his appointment or for that matter promotion thereto did not and
could not arise. Appellant did not show that there exists any channel of
promotion from the post of Assistant Grade-II to the post of Election B
Supervisor.

11. Thus, for all intent and purport, he was only deputed to that post.
Having been placed on deputation to a post which carries higher
responsibilities, some allowance could have been granted in his favour, but
he could not have been placed on a higher scde of pay. C
12. In absence of any channel of promotion, the Collector of the District
could not have, in law, appointed him on the post of Election Superintendent
and later issue a corrigendum that he had been promoted thereto. Appellant
before us has also not brought to our notice the extant rules of promotion D
operating in the field. It does not appear to be a case where the question of
promotion to the said post was considered in terms of the rule by a competent
authority. It furthermore does not appear that any Departmental Promotion
Committee considered the cases of all eligible candidates therefor. Whereas
in terms of the extant rules, the controlling authority may direct deputation
of an employee from one post to the other, it is beyond any doubt that for E
the purpose of grant of promotion, it was obligatory on the part of the
Collector to follow the statutory rules operating in the field.

13. It is, therefore, not a case as was sought to be made out that the
Finance Department of the State of Madhya Pradesh could not have issued
a clarification in this behalf as ultimately the financial burden would be on the F
State. Fundamental Rules 22(D) of the Rules to which our attention has been
drawn by the learned counsel for the appellant refers to regular promotion to
a post. It does not contemplate a situation of this nature. FR 22(D) is not
applicable to a case of deputation. It certainly would not apply where a
purported order of promotion has been effected from one cadre to the other G
and that too without following the statutory rules. We, therefore, do not find
any error in the judgment of the High Court in this behalf.

14. We, however, are of the opinion that in a case of this nature, no
recovery should be directed to be made. Appellant has discharged higher
responsibilities. It is not a case where he obtained higher salary on committing H
520 SUPREME COURT REPORTS [2007] 5 S.C.R.

A any fraud or misrepresentation. The mistake, if any, took place on a
misconception of law. He was at least entitled to some allowances. In re-fixing
his pay, his claim to that effect has not been considered. He has since retired.
A sum of Rs. 22,000/- has been recovered from him. Such recovery has been
effected without issuing any show cause notice. His case on merit in this
B behalf had not been considered by the Government and even by the Tribunal.
15. The Tribunal did not assign any reason in support of its order. The
correct legal position was not brought to the notice of the tribunal.

16. For the reasons aforementioned, this appeal is allowed in part and
to the extent mentioned hereinbefore.
c
17. We, therefore, while directing the respondents to refund the said
sum of Rs. 22,000/- to the appellant herein, also direct that his retirement
benefit shall be calculated as if he had reached the age of superannuation
only as an Accountant on the re-fixed pay and not on the scale of pay of
D the Election Supervisor. We issue this direction in exercise of our jurisdiction
under Article 142 of the Constitution of India. No costs.
)
RP. Appeal partly allowed.