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Andhra High Court · body

2002 DIGILAW 656 (AP)

G. Rami Reddy v. Government Of A. P.

2002-06-06

S.ANANDA REDDY, S.R.NAYAK

body2002
S. R. NAYAK, J. ( 1 ) IN this writ petition filed by a retired District and Sessions Judge, the dispute brought before the Court relates to fixation of pension of the petitioner on his retirement. ( 2 ) THE petitioner joined the A. P. Judicial Service in the year 1963. He was promoted as District Judge Gr. II in the year 1983. He worked as Chairman, Industrial Tribunal, Hyderabad with effect from 23. 5. 1989 and as Chairman, Additional Industrial Tribunal, Hyderabad with effect from 30. 4. 1990. The petitioner, while working as Chairman, Industrial Tribunal, Hyderabad, was sent on deputation as Director (legal) to the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha on 1. 5. 1990 and he worked there as such for a period of three months and retired from service on 31. 7. 1990. The last drawn pay of the petitioner in the post of Chairman, Addl. Industrial Tribunal, Hyderabad, was Rs. 4180. 00 per month and that post was a cadre post. When he was deputed as Director (legal) to the institution of Lok Ayuktha and Upa Lok Ayuktha, his pay was fixed at Rs. 4180. 00 per month in the post on the basis of the last drawn pay. After the retirement of the petitioner, his pension was fixed at Rs. 2027. 00 per month on the basis of the last pay drawn at Rs. 4180. 00. When the matter stood thus, the pay of the cadre post of Chairman, Industrial Tribunal and the cadre post of Chairman, Addl. Industrial Tribunal, was fixed at Rs. 5000. 00 per month in place of Rs. 4180. 00 as a consequence of the orders of this Court in W. P. No. 9387 of 1993 and 8039 of 1993 dated 29. 1. 1996. In pursuance of the above enhancement, the difference of pay was drawn and revised LPC showing the petitioner s last pay drawn at Rs. 5000. 00 per month was issued by the Chairman, Addl. Industrial Tribunal, Hyderabad. Accordingly, the petitioner was paid at the rate of Rs. 5000. 00 when he served in the post of Director (legal) in the institution of Lok Ayuktha and Upa Lok Ayuktha for a period of three months on the basis of the last drawn pay as per the revised LPC. Industrial Tribunal, Hyderabad. Accordingly, the petitioner was paid at the rate of Rs. 5000. 00 when he served in the post of Director (legal) in the institution of Lok Ayuktha and Upa Lok Ayuktha for a period of three months on the basis of the last drawn pay as per the revised LPC. ( 3 ) THE petitioner, thereafter, submitted revised pension forms to the High Court with a covering letter dated 26. 12. 1996 for scrutiny and onward transmission to the Accountant General, A. P. , Hyderabad for fixation of revised pension on the basis of the pay drawn during the last 10 months of the service of the petitioner as shown below: (I) Rs. 5000. 00 per month from 1. 10. 1989 t0 30. 4. 90 (7 months in the posts of Industrial Tribunal and Addl. Industrial Tribunal ). (ii) Rs. 5150. 00 per month from 1. 5. 90 to 31. 7. 90 (3 months) in the post of Director (Legal ). ( 4 ) ON the above basis, the petitioner claimed that he was entitled to pension of Rs. 2446. 00 per month instead of Rs. 2027. 00 earlier fixed. However, the High Court did not agree with the petitioner. The High Court prepared the revised pension papers based on the pay drawn by the petitioner for the last 10 months before his superannuation and as per the said calculation of the High Court, the petitioner was entitled to pay at the rate of Rs. 5000. 00 from October 198 9/04/1990 when he worked as Chairman, Addl. Industrial Tribunal and to pay of Rs. 4180. 00 only for the period from May 1990 to July 1990 when he worked as Director (Legal) in the institution of Lok Ayuktha and Upa Lok Ayuktha. As per above calculation, the High Court found that the petitioner is entitled to a pension of Rs. 2305. 00 per month from August 1990. The High Court, accordingly vide its letter dated 7. 9. 2000 forwarded the revised pension papers and the service register of the petitioner to the Secretary to the Government (Law Department) for onward transmission to the Accountant General, A. P. , Hyderabad for verification and report to the Government to issue orders sanctioning the revised pensionary benefits to the petitioner. In that letter, it is stated that the petitioner had drawn excess pay and allowances from 1. 5. In that letter, it is stated that the petitioner had drawn excess pay and allowances from 1. 5. 1990 and necessary steps for recovery of the excess amount drawn by the petitioner had to be taken. The Accountant General, A. P. , Hyderabad, agreed with the revised pension calculation at Rs. 2305. 00 per month from 1. 8. 1990 as proposed by the High Court and issued eligibility certificate dated 18. 1. 2001 on the pension entitlement of the petitioner. Since the petitioner had drawn pay at the rate of RS. 5000. 00 in the post of Director (legal), in the institution of Lok Ayuktha and Upa Lok Ayuktha for three months from1. 5. 1990 to 31. 7. 1990, it seems, the Accountant General requested the High Court to work out and communicate the quantum of excess amount drawn by the petitioner during the aforementioned period and to effect recovery from the arrears of pension payable to the petitioner. In the counter affidavit filed by the High Court, it is stated that since the excess amount was drawn by the petitioner while working as Director (legal) in the institution of Lok Ayuktha and Upa Lok Ayuktha, the amount of excess drawn is to be worked out by that institution. Under those circumstances, the petitioner filed the writ petition praying for the following relief:"for the reasons stated in the accompanying affidavit, the petitioner prays that this Hon ble court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction, declaring the proposals regarding pension of the petitioner sent by the 2nd respondent in Roc. No. 759/90 dated 7. 9. 2000 as contrary to law and unjust and to direct the fourth respondent to refix the pension of the petitioner taking into consideration the pay received by the petitioner as Director (Legal), Office of Lok Ayuktha at Rs. 5150. 00 per month and pass such other further order as this Hon ble Court may deem fit and proper. " ( 5 ) WE have heard Sri T. Bali Reddy, learned Senior Counsel appearing for the petitioner and learned Standing Counsel for the respondents. ( 6 ) SRI T. Bali Reddy contended that the petitioner while serving as Chairman, Addl. 00 per month and pass such other further order as this Hon ble Court may deem fit and proper. " ( 5 ) WE have heard Sri T. Bali Reddy, learned Senior Counsel appearing for the petitioner and learned Standing Counsel for the respondents. ( 6 ) SRI T. Bali Reddy contended that the petitioner while serving as Chairman, Addl. Industrial Tribunal, Hyde4rabad was sent to the institution of Lok Ayuktha and Upa Lok Ayuktha as Director (Legal) on deputation basis by the High Court and, therefore, the petitioner was entitled to draw as initial pay on par with the pay last drawn by him in respect of the post of Chairman, Addl. Industrial Tribunal before his deputation in the time scale attached to that post and denying that pay to the petitioner for the period of 3 months from May to July, 1990 and taking the pay of the petitioner during those three months only at Rs. 4180. 00 is unjustified and contrary to law. In support of the submission, the learned Senior Counsel placed reliance on the Judgment of the Apex Court in Comptroller and Auditor General of India v. Farid Sattar. 1 ( 7 ) SMT. M. Bhaskara Lakshmi, learned Standing counsel for the High Court, on the other hand, contended that the petitioner was sent to the institution of Lok Ayuktha and Upa Lok Ayuktha on deputation basis and, therefore, the ratio of the Judgment in Farid Sattar s case (1 supra) has no application to the facts of the present case and, therefore, the calculation made by the High Court and recommended to the Government is justified and it is in accordance with law and the petitioner is not entitled to the relief sought in the writ petition. ( 8 ) HAVING heard the learned counsel for the parties and perused the pleading of the parties, we are of the considered opinion that the controversy brought before the Court by way of this writ petition would be resolved by deciding the question as to what should be the pay of the petitioner when he worked as Director (legal) in the institution of Lok Ayuktha and Upa Lok Ayuktha for a period of three months from May, 1990 to July, 1990, for the purpose of fixation of pension. There is no controversy between the parties as regards the calculation or computation of the pay for the purpose of computation of pension of the petitioner except with regard to the pay during the three months period when the petitioner worked as Director (legal) in the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha. ( 9 ) WHEN the matter was heard on an earlier occasion, we were not clearly told as to whether the deputation of the petitioner to the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha with effect from 1. 5. 1990 was at his request or the High Court itself placed his services at the disposal of the A. P. Lok Ayktha for being appointed as Director (Legal ). Therefore, we had directed the learned Standing Counsel for the High Court to place a copy of the order of the High Court deputing the petitioner as Director (legal) in the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha. Accordingly, the learned Standing Counsel, made available to us, a copy of the letter addressed by the Asst. Registrar, institution of A. P. Lok Ayuktha dated 4. 4. 1990 to the Registrar (Administration) of the High Court requesting the High Court to spare the services of judicial officers to the institution of A. P. Lok Ayuktha for the posts of Joint Registrar and Director (legal ). In response to this request emanating from the institution of A. P. Lok Ayuktha, the services of the petitioner was placed at the disposal of the said institution for being appointed as the Director (Legal), by the High court as could be seen from a copy of the proceeding dated 4. 4. 1990 of the High Court which is placed before us. Therefore, it is quite clear that the deputation of the petitioner to the institution of Lok Ayuktha was not at his request and it was involuntary. If that is so, the ratio of the Judgment of the Apex Court in Farid Sattar s case (1 supra) squarely applies to the facts of this case also. ( 10 ) IN the case of Farid Sattar (supra 1), the respondent therein joined as an Auditor in the office of the Accountant General (Aande), West Bengal on 16. 2. 1982. ( 10 ) IN the case of Farid Sattar (supra 1), the respondent therein joined as an Auditor in the office of the Accountant General (Aande), 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 and 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 on4. 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 Generarl (Aande), 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 (Aande), 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. 00, 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. 00 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 an OA before the Central Administrative Tribunal, Calcutta challenging the memo dated 8. 11. 1994contending that the pay which he was drawing as Senior Accountant viz. , Rs. 1560. 00 in the pay scale of Rs. It is at this stage, the respondent filed an OA before the Central Administrative Tribunal, Calcutta challenging the memo dated 8. 11. 1994contending that the pay which he was drawing as Senior Accountant viz. , Rs. 1560. 00 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 Central Administrative Tribunal took the view that since unilateral transfer is not contemplated by Fundamental Rules and as such, the case of the respondent has to be governed by F. R. 22 (1) (a) (3), and in that view of the matter, 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 carried the matter to the Apex Court. Before the Apex Court, on behalf of the appellants, it was contended that the Tribunal fell in error in applying FR. 22 (1) (a) (3 ). It was contended that the pay of the respondent was required to be fixed in accordance with the terms and conditions which were accepted by the respondent. On behalf of the respondent, it was contended that unilateral transfer not being contemplated under the Fundamental Rules, the transfer of the respondent necessarily had to be governed by FR. 22 (1) (a) (3) and on an application of the said rule, no exception can be taken to the order of the Tribunal. On behalf of the respondent, it was contended that unilateral transfer not being contemplated under the Fundamental Rules, the transfer of the respondent necessarily had to be governed by FR. 22 (1) (a) (3) and on an application of the said rule, no exception can be taken to the order of the Tribunal. The Supreme Court, while allowing the appeal and setting aside the order of the Tribunal, was pleased to hold-"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 (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 of the old post held by him on regular basis. Thus, FR. 22 (1) (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 anew 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. " ( 11 ) HOWEVER, Smt. M. Bhaskara Lakshmi contended that the ratio of the above Judgment would have applied to the facts of this case if the petitioner was transferred to the institution of A. P. Lok Ayktha and Upa Lok Ayuktha unilaterally by the High Court, but since the petitioner s services were placed at the disposal of the above institution on deputation basis, the ratio is not applicable. Smt. M. Bhaskar Lakshmi, further contended that the executive instructions issued in GOP. No. 10 Fin. and Plg. Dt. 22. 1. 1993, on which the petitioner has placed reliance, are not applicable to the cases of deputation to the institution of A. P. Lok Ayuktha and Upa Lok Ayktha, because, it is not a foreign service, but it is a department under the administrative control of the State Government. The submissions of the learned Standing Counsel are not acceptable to us for more than one reason. The records placed before us clearly show that the services of the petitioner were placed at the disposal of the Institution of Lok Ayuktha and Upa Lok Ayuktha for being appointed to the post of Director (Legal) unilaterally. It is not also acceptable to us that the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha is a department of the Government or can be treated as such. It is trite the institution of A. P. Lok Ayuktha and Upa Lok Ayuktha is a statutory authority created uner the A. P. Lok Ayuktha and Upa Lok Ayuktha Act. Therefore, the Institution of Lok Ayuktha and Upa Lok Ayuktha cannot be treated as a department of the Government. Therefore, it should be held that when the petitioner was in the service of Institution of Lok Ayuktha and Upa Lok Ayuktha as Director (legal) between May 1990 and July, 1990, it was on a foreign service. If that is so, the executive instructions contained in GOP. 10 Fin. and Plg. Dt. 22. 1. 1993 with reference to G. O. Ms. No. 204 Fin. and Plg dated 21. 5. 1976 squarely apply. The said GOP, among other things, provides- (I) x (ii) Pay and Allowances:- The Foreign Employer shall, during the period of deputation/foreign service, allow the Government Servant, pay and other allowances, as mentioned, below: Basic Pay :- The pay and the scale of pay as admissible from time to pay to the Government Servant in the Government Department just preceding his joining to duty under the Foreign employer deputation post. ( 12 ) FROM the above provisions, it is clear that the petitioner was entitled to the same pay and which he had drawn last as the Chairman, Addl. Industrial Tribunal, Hyderabad before his deputation to the institution of A. P. Lok Ayktha and Upa Lok Ayuktha as Director (legal ). ( 12 ) FROM the above provisions, it is clear that the petitioner was entitled to the same pay and which he had drawn last as the Chairman, Addl. Industrial Tribunal, Hyderabad before his deputation to the institution of A. P. Lok Ayktha and Upa Lok Ayuktha as Director (legal ). ( 13 ) IN the result and for the foregoing reasons, we allow the writ petition and declare that the petitioner is entitled to pension at the rate of Rs. 2446. 00 (Rupees Two Thousand and four hundred and forty six only) per month with effect from 1. 8. 1990. A direction shall issue to the respondents to give effect to the above declaration. Two months time is granted to the respondents to draw and pay the arrears of difference of pension to the petitioner. In the circumstances, the parties shall bear their own costs.