FR 22(D) applies only to regular promotions, not deputations. Recovery of excess pay is inequitable if the employee performed higher duties and the payment resulted from a legal misconception by the administration without fraud or misrepresentation, especially post-retirement.

Headnote:(A) State Civil Services Rules - Fundamental Rule 22(D) - Pay fixation on appointment to higher post - Applicability - FR 22(D) refers to regular promotion to a post and does not contemplate a situation of deputation or where a purported promotion is effected from one cadre to another without following statutory rules of promotion - FR 22(D) is not applicable to a case of deputation.

(B) Recovery of excess payment - Equity and fairness - If an employee has discharged higher responsibilities and obtained higher salary due to a misconception of law by the administration, without any fraud or misrepresentation, recovery of such excess amount is not permissible, especially after the employee has attained the age of superannuation.

Facts of the case:
An employee working as an accountant was appointed to the post of election supervisor and placed on a higher pay scale. A government circular later clarified that transfers to higher posts between departments should be treated as postings, not appointments, and pay should not be fixed under FR 22(D). Consequently, the employee's pay was re-fixed to a lower scale, and the excess amount paid was recovered. The employee, who had retired, challenged the recovery. The High Court upheld the re-fixation and recovery, noting that the employee was not promoted according to law.

Findings of Court:
The court found that the appointment was effectively a deputation as there was no established channel of promotion from the post of accountant to that of election supervisor. Since statutory promotion rules were not followed and no Departmental Promotion Committee had considered the case, the appointment could not be termed a regular promotion. Therefore, FR 22(D) was not applicable. However, since the employee performed higher duties and the error in pay fixation was a misconception of law rather than fraud, the recovery of the excess amount was deemed inequitable.

Issues: Whether FR 22(D) is applicable to a deputation to a higher post and whether the state is entitled to recover excess salary paid due to a legal misconception when the employee has already retired.

Ratio Decidendi: FR 22(D) is restricted to regular promotions and does not apply to deputations or irregular promotions that bypass statutory rules. While the re-fixation of pay was legally correct, recovery of excess payments is impermissible if the employee acted in good faith, discharged higher duties, and the error was administrative, particularly for a retired employee.

Result: Appeal allowed in part; respondents directed to refund the recovered sum, and retirement benefits to be calculated based on the re-fixed pay as an accountant.

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JUDGMENT:

S.B. SINHA, J.

Leave granted

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(D) 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 (MP) in terms of a letter dated 25.7.1998 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 OM Sr. No. 1374/estab/98 dated 12.6.98. Thereafter Shri Babulal 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. Babulal Jain is senior to Mr. Puranik and experienced in election related work.

Photo Copy of his ACRs are enclosed.

Thereafter it is recommended that Shri Babulal Jain, accountant, be promoted to the post of election supervisor.

Encl :- Sd/-

Photo Copy of ACRs Collector

For the Years 93-97 District : Dewas (M.P.)"

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.

He was later on put in the pay scale of Rs. 4500-125-7000 with one 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 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.

ii. On being appointed on higher post the pay fixation of the concerned Government servant shall not be fixed under FR 22(D) or 22(A) rather on pay being drawn by him on lower post."

On or about 13.12.2000, the Collector added the word "promotion" in 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. Babulal Jain, then Asst. Grade-II/Accountant/now, Election Supervisor,

Election Branch, Collecotrate, Dewas (M.P.) partial 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."

On and from 1.1.2000 he started drawing a salary of Rs. 6625/- per 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 superannuation on 31.12.2001.

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

Having regard to the fact that the appellant had filed a representation in respect of the said Order dated 13.12.2001 before the Chief Electoral 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 re

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Judicial Analysis

2007 Supreme(SC) 564

Supreme Court Of IndiaBabulal Jain - AppellantVersusState of M.P. - RespondentDecided On : 04/24/2007

FR 22(D) applies only to regular promotions, not deputations. Recovery of excess pay is inequitable if the employee performed higher duties and the payment resulted from a legal misconception by the administration without fraud or misrepresentation, especially post-retirement.

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Judicial Analysis

Supreme Court Of India
Babulal Jain - Appellant
Versus
State of M.P. - Respondent
Decided On : 04/24/2007