2000 JTR(SC) 733
2000 AIR(SC) 1557 ; 2000 AIR(SCW) 1374 ; 2000 2 CLR 254 ; 2000 85 FLR 856 ; 2000 4 JT 374 ; 2000 3 LLN 45 ; 2000 3 Scale 147 ; 2000 4 SCC 13 ; 2000 SCC(L&S) 440 ; 2000 2 SCR 1067 ; 2000 2 SCT 468 ; 2000 3 SLJ 286 ; 2000 2 SLR 636 ; 2000 2 UPLBEC 1735 ; 2000 WBLR 464 ; 2000 KHC 1105 ; 2000 4 Supreme 611
2000(4) Supreme 611
SUPREME COURT OF INDIA
(From Central Administrative Tribunal, Calcutta)
V.N. Khare and Doraiswamy Raju, JJ.
Comptroller & Auditor General of India & Ors. -Appellants
versus
Farid Sattar -Respondent
Civil Appeal No. 13020 of 1996
Decided on 7-4-2000
Counsel for the Parties :
For the Appearing Parties : K.N. Raval, Additional Solicitor General, P.P. Malhotra, Sr. Advocates, Mrs. Niranjana Singh, Hemant Sharma, Anil Katiyar, C.V. Subba Rao, Raj Kumar Gupta, H.V.P. Sharma, A.N. Bardiyar, Arvind Kumar Sharma, D.P. Chaturvedi, S.N. Bhat, Ms. Anubha Jain, Advocates.
IMPORTANT POINT
An employee who obtains transfer at his request (unilateral transfer) on condition he would be posted in as junior to the junior most at the place where he is transferred as a fresh direct recruit after technical resignation of post he is holding, he would not be entitled to get protected the pay he is drawing before his transfer.
Act
Referred
:FUNDAMENTAL RULES : R.22(i)(a)(2), R.22(i)(a)(3)
SERVICE LAW : .
(A) The relevant statutory framework consists of Fundamental Rule 22(I)(a)(2) and Fundamental Rule 22(I)(a)(3), read together with provisions governing unilateral transfer. Rule 22(I)(a)(2) applies when an appointment to a new post does not involve an assumption of duties of greater importance, requiring the employee to draw the pay stage equal to the old post or the next higher stage. Rule 22(I)(a)(3) applies where an employee, on his own request under sub-rule (a) of Rule 15, moves to a post with a lower maximum pay, in which case he is entitled to draw the maximum pay of the new post as initial pay. The unilateral transfer entered into by the respondent was not contemplated by the Fundamental Rules, yet the terms expressly provided that the respondent would join as a direct recruit in a lower post, thereby expressly limiting the scope for protection of prior pay.
(B) The core legal principles are that a unilateral transfer outside the Fundamental Rules is to be treated as a transfer on request, the pay fixation must follow the terms accepted by the employee, and protection of prior pay is not applicable where the employee accepts reversion to a lower post as a direct recruit.
Facts of the case:
The respondent was originally appointed as a Senior Accountant and sought a unilateral transfer to another office, accepting terms that required him to resign technically and join as a direct recruit in a lower post. His pay was initially and erroneously fixed at a higher level, and subsequent orders sought to recover the excess amount.
Findings of Court:
The court found that the terms of unilateral transfer clearly mandated reversion to a lower post, and accordingly, the pay had to be fixed in accordance with the lower pay scale rather than the prior higher pay.
Issues:
Whether the tribunal correctly applied the relevant Fundamental Rules in the context of a unilateral transfer and whether the pay of the respondent was liable to be protected at the higher level.
Ratio Decidendi:
Where an employee voluntarily accepts a unilateral transfer with terms requiring reversion to a lower post as a direct recruit, the pay must be fixed according to the new posts scale, and the prior higher pay scale is not protected.
Result:
The appeal is allowed, the tribunals judgment is set aside, and the order for recovery of excess salary is upheld.
(A) The relevant statutory framework consists of Fundamental Rule 22(I)(a)(2) and Fundamental Rule 22(I)(a)(3), read together with provisions governing unilateral transfer. Rule 22(I)(a)(2) applies when an appointment to a new post does not involve an assumption of duties of greater importance, requiring the employee to draw the pay stage equal to the old post or the next higher stage. Rule 22(I)(a)(3) applies where an employee, on his own request under sub-rule (a) of Rule 15, moves to a post with a lower maximum pay, in which case he is entitled to draw the maximum pay of the new post as initial pay. The unilateral transfer entered into by the respondent was not contemplated by the Fundamental Rules, yet the terms expressly provided that the respondent would join as a direct recruit in a lower post, thereby expressly limiting the scope for protection of prior pay.
(B) The core legal principles are that a unilateral transfer outside the Fundamental Rules is to be treated as a transfer on request, the pay fixation must follow the terms accepted by the employee, and protection of prior pay is not applicable where the employee accepts reversion to a lower post as a direct recruit.
Facts of the case:
The respondent was originally appointed as a Senior Accountant and sought a unilateral transfer to another office, accepting terms that required him to resign technically and join as a direct recruit in a lower post. His pay was initially and erroneously fixed at a higher level, and subsequent orders sought to recover the excess amount.
Findings of Court:
The court found that the terms of unilateral transfer clearly mandated reversion to a lower post, and accordingly, the pay had to be fixed in accordance with the lower pay scale rather than the prior higher pay.
Issues:
Whether the tribunal correctly applied the relevant Fundamental Rules in the context of a unilateral transfer and whether the pay of the respondent was liable to be protected at the higher level.
Ratio Decidendi:
Where an employee voluntarily accepts a unilateral transfer with terms requiring reversion to a lower post as a direct recruit, the pay must be fixed according to the new posts scale, and the prior higher pay scale is not protected.
Result:
The appeal is allowed, the tribunals judgment is set aside, and the order for recovery of excess salary is upheld.
JUDGMENT
V.N. Khare, J.-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 Accountant, 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 the Central Administrative 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 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 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(I) (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.
2. Learned counsel for the appellants urged that the tribunal fell in error in applying F.R. 22(I)(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 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(I)(a)(3) which is applicable, and on an application of the said rule, the judgment and order of the tribunal has to be affirmed.
3. 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 (I) (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, the stage of the time-scale which is equal to his pay in responst 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 (I) (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 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."
4. 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 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.
His pay shall be regulated in accordance with the relevant rules in force in his U.T. as Accountant."
5. 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(I)(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(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 such a case, the pay of an employee on transfer to a new post has to be protected. Fundamental Rule 22(1)(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 his pay in the 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 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 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.
6. Under the terms and conditions of the 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.
7. 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 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.
(C.R.) Appeal allowed.
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