2007 Supreme(SC) 568

2007(3) Supreme 722
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and Markandey Katju, JJ.
Babulal Jain — Appellant
versus
State of M.P. & Ors. — Respondents
Civil Appeal No. 2125 of 2007
(Arising out of S.L.P. (C) No. 26015 of 2005)
Decided on 24-4-2007
Counsel for the Parties :
For the Appellant : Paramjit Singh Patwalia, Sr. Advocate, Amanpreet Singh Rahi, Manjeet Singh, Harikesh Singh, T.V. George, Satish Kumar and Ashwani Bhardwaj, Advocates.
For the Respondents : G.P. Singh, Ms. Sushma Singh, Manohar Singh Bakshi, Debasis Misra, Naveen Sharma and B.S. Banthia, Advocates.

IMPORTANT POINT
Fundamental Rule 22(D) of M.P. Civil Services (CCA) Rules referred to regular promotion to a post and was not applicable to a case of deputation.

Headnote:SERVICE LAW — M.P. Civil Services (CCA) Rules — FR 22(D) — Rule refers to regular promotion to a post and is not applicable to a case of deputation — Appellant was employed as an Accountant — He was appointed to post of ‘Election Supervisor’ alleged to be a promotion — He was put in a pay scale of Rs. 4500 – 125 – 7000 with the increment as his personal pay — State Govt. issued a circular on or about 9-2-1999 in regard to fixation of pay on appointment to post involving higher duties and responsibilities — Collector then added word “promotion” in his offer of appointment by way of corrigendum and appellant started drawing salary of Rs. 6625/- p.m. — He superannuated on 31-12-2001 — His pay was directed to be refixed in light of Office Memorandum dt. 9-2-1999 at Rs. 6000/- + Rs. 179 as personal pay — Excess amount was directed to be recovered — Administrative Tribunal dismissed the application summarily — Writ filed against the order was dismissed by High Court holding that post of Election Supervisor to which appellant was appointed was not by promotion — Appeal — High Court was right in its finding that appointment on post of Election Supervisor was not by promotion — However in a case of such nature, no recovery should have been directed and respondents to refund the recovered amount of Rs. 22000/-.

       Held : It is not the case of the appellant that the post of Assistant Grade-II provides for a channel of promotion to the post of Election Supervisor. Appellant, indisputably was an employee working in the Collectorate having been appointed by the State of Madhya Pradesh. A Collector of a District has 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 Supervisor. (Para 10)

       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. (Para 11)

       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 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 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. (Para 13)

       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 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 behalf had not been considered by the Government and even by the Tribunal. (Para 14)

       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. (Para 15)

       For the reasons aforementioned, this appeal is allowed in part and to the extent mentioned hereinbefore. (Para 16)