JUDGMENT 1. - We have heard the learned counsel for the parties finally at this stage at the request of the learned counsel for the parties. 2. This appeal is directed against the judgment of learned Single Judge dated 19.5.2003 passed in S.B. Civil Writ Petition No. 1397/2002. The relief 5 claimed by appellant-claimant is that after he was declared surplus on the post of Operator Gr.II in the Department of Mahi Dam Project vide order dated 23.4.1999 and by order dated 16.12.1999, he may be granted the pay at As. 63751- as on 13.11.2000 in the pay scale of Rs. 5500-175-9000. 3. The petitioner was substantively appointed as Operator Gr II in the pay-scale applicable to those who had completed 18 years of service and were entitled to benefit of selection scale on the completion of 9 years and 18 years of service. Since the petitioner was appointed in the first instance, vide order dated 25.3.1976 and if this order is read with Annex.-1, it shows that he was fixed in the pay-scale of Rs. 5500-9000 and on 23.4.1999 and 16.12.1999 when he was declared surplus and placed in pool of surplus personnel to be absorbed on equivalent or equated posts, he was drawing the pay at Rs. 5630/-. His pay on 4.3.1998 was Rs. 5450/- and his next increment was due on 13.11.1998. At the time of his absorption vide order dated 13.6.2000 (Annex.-4), he was absorbed as driver Gr.II, the post carrying lower pay-scale of As. 3050-4590. 4. We may notice here that the initial scale of pay applicable to the post of Operator Grade II was As. 3400- 5200. 5. From 16.12.1999 until the date of his absorption, the petitioner remained in pool of surplus employees to be absorbed as per orders passed by the Competent Authority, was drawing the same pay as he was drawing at the time he was declared surplus. As the petitioner was absorbed by order dated 13.6.2000 in the lower time scale of pay, his pay was to be fixed in that scale. Last pay certificate (Annex.-6) shows that his substantive pay was Rs. 6200/- in the pay-scale of As. 5500-9000 if corresponding D.A. and other allowances are added thereto. However, on absorption on the post of Driver Gr. II when his pay was fixed. in the pay scale of Rs. Last pay certificate (Annex.-6) shows that his substantive pay was Rs. 6200/- in the pay-scale of As. 5500-9000 if corresponding D.A. and other allowances are added thereto. However, on absorption on the post of Driver Gr. II when his pay was fixed. in the pay scale of Rs. 5000-8000 (The scale under fifth pay commission), his substantive pay was fixed at As. 5750/- only as on 13.11.1999 Thus, the petitioner's pay was not protected on absorption on lower post. This led to an appeal before the Rajasthan Service Appellate Tribunal. 6. Vide order dated 24.12.2001, the appeal was dismissed with the observation that he should make a representation to the competent authority for redressing his grievance giving him liberty to file an appeal again if the order goes against him. The Tribunal directed the Competent Authority to pass a reasoned order if his prayer was denied. 7. Against the aforesaid order dated 24.12.2001, the writ petition was preferred before this Court by the appellant. 8. The learned Single Judge by judgment under appeal found that since the petitioner gave an option to absorb him on lower post and because of his such application he was absorbed on the post of Driver in lower pay scale, there was no infirmity in absorbing the petitioner in the lower time scale of pay. There was no illegality in absorbing the petitioner on the post carrying lower time pay scale of pay when from the post on which he was working, he was declared surplus. With this finding, the learned Single Judge found that since the absorption was not illegal, the fixation of basic pay at Rs. 5750/- on the post of driver on the absorption in Excise Department cannot be considered to be illegal and no legal right of the petitioner has been infringed. Consequently, the petition was dismissed. Hence, this appeal. 9. It has to be kept in view that the legality of absorption and fixation of pay are two distinct and separate aspects of the matter. Even if the absorption is held to be valid, the fixation of pay, if it does not accord with the Rules governing fixation of pay of a surplus employee absorbed on lower post, it may be void. Even if the absorption is held to be valid, the fixation of pay, if it does not accord with the Rules governing fixation of pay of a surplus employee absorbed on lower post, it may be void. It is to be seen that notwithstanding the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 permits the State Government to absorb the surplus personnel not only on equivalent post which means a post carrying same time scale of pay having identical responsibility, but also on equated post which is so declared by the Committee and such equated post may carry a different time scale of pay which has been applicable to the incumbent who has been declared as surplus lower or higher. 10. But for this provision it is not for the State Government to transfer a person by itself on a post carrying less pay than the pay of permanent post on which an incumbent holds a lien. In this connection Rule 20 of the Rajasthan Service Rules is relevant, which reads as under: "20. Transfer of Government Servant. - (a) Government may transfer a Government servant from one post of another, provided that except (i) on account of inefficiency or misbehaviour. (ii) on his written request. a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 50 appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a line or could hold a lien had his lien not been suspended under Rule 17." 11. Thus, in two situations a person can be transferred to a post which may be carrying less pay than the pay of the permanent post on which the incumbent holds a lien. The contingencies provided under Rule 20 are; firstly on account of inefficiency or misbehaviour which may amount to reduction in rank by way of punishment and secondly on his written request. 12. In other case, the situation may arise where the incumbent has been declared surplus under the Rules of 1969 referred to above and he has been absorbed as a surplus personnel on an equated post which may be carrying lower time scale of pay. 13. 12. In other case, the situation may arise where the incumbent has been declared surplus under the Rules of 1969 referred to above and he has been absorbed as a surplus personnel on an equated post which may be carrying lower time scale of pay. 13. There is no dispute in the present case that the petitioner-appellant was a surplus employee and his case would fall under the Rules of 1969 under which he has to be posted from the pool of surplus personnel to another post by way of absorption. 14. The order dated 13.6.2000 (Annex.-4) also shows that the Government has not acted under Rule 20 of the R.S.R. for transferring him to the lower post but has discharged its statutory obligation of absorbing the petitioner on the post carrying lower time scale of pay. In these circumstances, apparently, the fixation of pay on the absorption of an employee who has been declared surplus must be governed by the Rules governing such cases. 15. In this connection, Rule 26 of the RSR provides the answer.Relevant part of Rule 26 is reproduced here in below: Section 26-(1) A Government servant already serving in one service, cadre or department who is appointed to another service, cadre or department by direct recruitment or special selection (including transfer, other than by. deputation, from one service, cardiac or department, to another) and not by promotion according to service rules, shall have his initial pay fixed as follows: Category Last pay on old post Initial pay on new post (b)(i) Substantive on a lower post but officiating on a higher permanent or temporary post in the same service, cadre or department provided that such officiation was in accordance with the provisions of Service Rules relating to promotion,promulgated under proviso to Article 309 of the Constitution (b) Persons covered by any paragraph in category (b) shall have pay fixed in the manner stated below (i) If minimum pay of the new post is equal or higher than that held substantively, then the minimum pay. (ii) If minimum pay of the new post, is lower than last pay In the old post other than that held substantively, then pay shall be fixed at the stage of the time scale which is equal to his last pay in the old post or if there is no such stage, next below that pay plus personal pay equal to the difference: Provided that If the maximum of the scale of the new post is lower than the maximum of the old post, than the pay shall be fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been counted as rendered against the new post, subject to the condition that the pay so fixed shall be restricted to the pay last drawn in the old post; (iv) Temporary on a permanent of temporary post, provided that appointment had been made in the process of absorption of persons of persons declared 'surplus' due to abolition of posts, and that pay drawn on the abolished post was of the type described in pharagraphs (a), (b) (i), (b) (ii) and (b) (iii) above. Provided further that if fixation of pay on the basis of pay admissible on substantive post in accordance with paragraph (a) (I) or (a) (iii) above is more advantageous, pay shall be fixed under the said clauses. "(3) When appointment to the new post is made at the request of the Government servant under Rule 20(a) or Rule 215(b) and the maximum pay in the time scale of new post is lower than his last pay in the old post, he will draw that maximum of new post as initial pay." Rule 20 we have noticed above. 16. Rule 215 deals with grant of compensatory pension, with which we are not presently concerned. 17. Clause (b) (i) of the schedule under sub-rule (1) to Rule 26 provides for fixation of pay in contingency where an incumbent is sub tentatively on lower post officiating on higher or temporary post in the same service cadre or department and Clause (b) (iv) governs the fixation of pay of a person on new post whereon be has been brought on by absorption. Same principle applies as in the case of (b)(i). 18. Same principle applies as in the case of (b)(i). 18. Clause (b) (iv) provides that if fixation of pay on the basis of pay admissible on substantive post whether temporary on a permanent or temporary post, provides that appointment had been made in the process of absorption of persons declared surplus due to abolition of post, the pay drawn on the abolished post is protected. Where minimum pay of the new post is lower than last pay. on the old post other than that held substantively, then pay shall be fixed at that stage of time scale which is equal to his last pay in the old post. The pay shall be fixed at the stage which he would have been entitled to as if the period of service rendered on the old post would have been rendered against the new post subject to the condition that the pay so fixed shall be restricted to the pay last drawn in the old post or if there is no such stage, then pay plus personal pay equal to the difference. 19. Therefore, if the case of the petitioner is treated to be one of absorption of surplus employee, about which there is no doubt, whether he has been absorbed on new post which may be lower than the old post, his last drawn pay against old post is to be protected, if necessary, by permitting to draw personal pay equal to the difference. 20. Assuming it to be a case of appointment on new post on the request of the petitioner to a lower post, under sub- rule (3) of Rule 26, if the maximum pay in the time scale of new post is lower than his last pay in the old post, he will draw that maximum of new post as initial pay. 21. Sub-rule (3) of Rule 26 by restricting the fixation of pay upto maximum of lower time scale of pay clearly indicate to the fact that there is protection of pay upto maximum of pay scale of new post but not beyond it. Sub- rule (3) does not provide increase of the salary beyond maximum of the pay scale. However, we have noticed above that the petitioner after his absorption on the new post of Driver, as Operator Grade II, he was in the pay scale of 5000-8000/-. Sub- rule (3) does not provide increase of the salary beyond maximum of the pay scale. However, we have noticed above that the petitioner after his absorption on the new post of Driver, as Operator Grade II, he was in the pay scale of 5000-8000/-. The maximum of pay scale was higher than the last drawn pay and hence his last drawn pay is to be protected. 22. Thus, looked from any angle. Merely because petitioner was absorbed at his own request on a post carrying lower time scale of pay. Rules of fixation of pay on absorption will only govern his case and it cannot result in lowering the pay. His fixation of pay lower than the last drawn pay before absorption has to be protected by fixing at appropriate stage in the lower pay-scale or by giving difference between the pay at which he is fixed and his last drawn pay. 23. We are of the opinion that the learned Single Judge has clearly erred in not considering the difference between the absorption of surplus employee and the fixation of pay on such absorption. Both are governed by independent Rules. Merely because a person has been absorbed on a post carrying lower time scale of pay does not automatically result in reduction of pay. 24. The appeal is consequently allowed, the Judgment under appeal is set-aside. The writ petition is also allowed. The respondents are directed to fix the petitioner's pay in the pay scale applicable to Driver Gr. II by protecting the pay of the petitioner which he was last drawing on the post when he was declared surplus on his absorption.Appeal And Writ Petition Allowed. *******