Holding

If a unilateral transfer is not contemplated under the Fundamental Rules, it is governed by the terms and conditions of that unilateral transfer, and the pay drawn at the higher post is not required to be protected.

Summary

Farid Sattar, a Senior Accountant, sought a mutual transfer which was not permissible and was advised to apply for a unilateral transfer that required him to revert to the lower post of Accountant as a direct recruit, forfeiting his senior status. After the transfer his pay was mistakenly fixed at the higher Senior Accountant scale and later corrected by a memorandum. Sattar challenged the re‑fixation before the Central Administrative Tribunal, arguing that under Fundamental Rule 22(1)(a)(3) his higher pay should be protected even after reversion. The Tribunal held that the transfer fell under Fundamental Rule 22(1)(a)(3) and allowed Sattar’s claim. On appeal, the Supreme Court held that unilateral transfers are not contemplated by the Fundamental Rules and therefore are governed by the specific terms of the unilateral transfer, which required Sattar to accept the lower pay scale; consequently the re‑fixation was correct. The Court set aside the Tribunal’s order and allowed the appeal.

Issues considered

Whether Fundamental Rule 22(1)(a)(3) applies to a unilateral transfer that involves reversion to a lower post.
Whether the pay drawn at the higher post must be protected after the employee reverts to a lower post under the terms of a unilateral transfer.

Legislation cited

Fundamental Ruless. 22(1)(a)(2), s. 22(1)(a)(3), s. Rule 15(a)

Subjects

service lawunilateral transferpay fixationFundamental Rulesreversionpay protectionCentral Administrative Tribunalcivil service

Judgment

COMPTROLLER AND AUDITOR GENERAL OF INDIA AND ORS. A
v.
FARID SATIAR
·- APRIL 7, 2000

[V.N. KHARE AND DORAISWAMY RAJU, JJ.] B

Service Law :

Fundamental Rules-Rule 22(l)(a)(3)-Applicability of-Fixation of
pay-Of Senior Accountant-Voluntarily opting/or junior post as condition for
unilateral transfer-Fixation of pay in the junior post-Plea, that the pay
c
drawn at the higher post has to be protected even after reversion to the lower
post-CAT held, since unilateral transfer not contemplated under Fundamental
Rules, the transfer is governed by the Rule, and hence entitled to draw pay at
higher post-On appeal, Held, transfer not governed by Fundamental Rule,
hence pay drawn at the higher post not required to be protected. D

Respondent, while officiating on the post of Senior Accountant, ap-
plied for mutual transfer. Since mutual transfer was not permissible in the
cadre of Senior Accountant, the respondent was advised to apply for
unilateral transfer conditions for which he would have to seek reversion to
the lower post of Accountant as a direct recruit, foregoing the status of E
Senior Accountant. Respondent applied for the unilateral transfer accept-
-- ing the conditions thereof. After transfer as an Accountant, his pay scale
was erroneously fixed as that of Senior Accountant. The pay scale of
Senior Accountant was higher than that of Accountant. The pay scale of
the respondent was refixed as that of Accountant, vide a Memorandum, F
after finding the mistake in fixation of his pay.

Respondent challenged the Memorandum refixing his pay, before
Central Administrative Tribunal, on the ground that the pay which he was
drawing as Senior Accountant has to be protected, even if he was reverted
to the post of Accountant. The appellants contended that his pay was not G
required to be protected because the respondent was bound by the terms
and conditions of the unilateral transfer and his pay was to be fixed as
· direct recruit. Central Administrative Tribunal allowed the application,
holding that respondent's case was to be governed by Fundamental· Rule
22(1) as having gone on transfer on request,-~nce unilateral transfer is not H
1067
1068 SUPREME COURT REPORTS [2000] 2 S.C.R.
A contemplated by Fundamental Rules.

" In appeal to this court, it was contended by the appellant that the
pay of the respondent was to be fixed as per the terms and ~onditions of
unilateral transfer, and Fundamental Rules were not applicable in this
case.
B
Allowing the appeal, this Court

HELD : 1. If unilateral transfer is not contemplated under the Fun-
damental Rule, it is not necessarily to be governed by Fundamental Rules
but by the terms and conditions of such unilateral transfer. [1071-C]
c
2. The pay of respondent as fixed earlier, was correctly re-fixed.
Under the terms and conditions of the transfer, the pay which the respond-
ent was drawing on higher post was not required to be protected when he
joined the lower post of Accountant. [1072-B-C]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13020 of
1996.

From the Judgment and Order dated 20.5 .96 of the Central Administra-
tive Tribunal, Calcutta, in O.A. No. 1297 of 1995.
E
K.N. Raval, Additi<?nal Solicitor General, P.P. Malhotra, Mrs. Niranjana
Singh, Hemant Sharma, Anil Katiyar, C.V. Sobba Rao, Raj Kumar Gupta,
H.V.P. Shanna, A.N. Bar'diyar, Arvind Kumar Sharma, D.P. Chaturvedi, S.N.
Bhat and Ms. Anubha Jain for the appearing parties.

F The Judgment of the Court was delivered by

V.N. KHARE, J. Farid Sattar, respondent herein, joined a.s 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
G 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 Accountant, working in the Office of the Senior Deputy Accountant
H General (A & E), Sikkim. As mutual transfer was not permissible in the cadre
COMP1ROI.LER AND AUDITOR GENERAL OF INDIA v. FARID SATIAR [V.N. KHARE, J.] 1069
of Senior Accountant, the respondent was advised to apply for unilateral A
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
B
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 c
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 the Central Admin- D
istrative Tribunal, 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 he was
reverted to the 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 E
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 the unilateral transfer and as on acceptance of such terms and
conditions, the respondent was required to tender technical resignation from
the 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 F
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 G
treated as having gone on transfer on request and, therefore, his case was to
be governed by F.R.22 (l) (a) (3). In view of the provisions of above Rules,
the 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. H
1070 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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 then
referred to the terms and conditions of the unilateral transfer of the respondent
Learned counsel for the respondent urged that unilateral transfer not being
B
contemplated in F.R., the transfer of the respondent necessarily has to be
governed by P.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 aild order of
the tribunal has to re affinned.

C In order to appreciate the arguments of the learned counsel for the
parties, it is necessary to refer P.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
D importance, he shall draw as initial pay, the stage of the time-scale
which is equal to his pay in response of the old post held by him on
regular basis, or, if there is no such stage, the stage next above his
pay in respect of the old post held by him on regular basis:

FR 22 (1) (a) (3): When appointment to the new post is made on
E his own request under sub-rule (a) of Rule 15 of the said rules, and
the maximum pay 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- "

F The relevant terms and conditions of unilateral transfer, as accepted by
the respondent, are extracted below:

"The transfer will 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
G
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), We.st Bengal,
Calcutta, in order to join Accountant's post in the Office of the Senior
H Dy. Accountant General ( A & E), Sikkim, Gangtok.
COMPTROILER AND AUDTIOR GENERAL OF INDIA v. FARID SATIAR (V.N. KHARE, J.] 1071

- He shall have no right to seek re-transfer to his parent office or to any
other office.
A

- On unilateral transfer he is required to pass whatever departmental
examination as prescribed by the relevant recruitment fules.

His pay shall be regulated in accordance with the relevant rules in B
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 c
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 D
of the old post held by him on regular basis. Thus P.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 Rule 22(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 E
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 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 of Rs. 1400-2600 was drawing pay at the

- stage of Rs. 2040 and he is transferred on his own request not involving
reversion to a post which carries pay scale of Rs. 1200-2040, in such a case,
the maximum pay which he was drawing viz .. Rs. 2040 has to be protected
on the transferred post which carries a pay scale of Rs. 1200-2040. It is not
1
F

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 G
in it. The terms and conditions provided that the respondent on transfer would
• be appointe~ 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 which he was holding with a view to join the lower post as a 4-irect
recruit and was to rank junior to junior most employee in the cadre of H
1072 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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 fixeo 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..
I

B Under the terms and conditions of the transfer, the pay .~hich
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 re-fixed by Memorandum dated
c 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.

K.K.T. Appeal allowed.