Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 864 (GAU)

Ram Sankar Bhattacharjee v. Gauhati High Court

2010-11-18

A.C.UPADHYAY, T.NANDAKUMAR SINGH

body2010
JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. Somik Deb, learned Counsel appearing for the Petitioner. Also heard Mr. A. Lodh, learned Addl. S. G. appearing for the Respondent-5, Mr. S. M. Chakraborty, learned senior counsel appearing for the Respondents-1 and 2 and Mr. S. Chakraborty, learned Addl. G. A. for the Respondent No. 3. 2. Sans unnecessary details, concise facts leading to the filing of the present writ petition is recapitulated; the Petitioner is now working as Assistant Registrar in the Gauhati High Court, Agartala Bench. The Petitioner initially joined Government service under the Department of P & T, North East Circle, Shillong as Stenographer Grade II in the pay scale of Rs. 1400-2300 pm; while working in the above pay scale, Petitioner proceeded on deputation on 3.2.86 as Stenographer Grade-C in the office of the Central Administrative Tribunal (for short CAT) with deputation allowance @ 20%. While rendering his service as Stenographer Grade-C in the CAT, he was promoted as Stenographer Grade-B, which is a gazetted post, with effect from 04.11.1986. 3. While serving as Stenographer Grade-B (Gazetted Post) having the pay scale of Rs. 2000-3200/- pm; even though the Petitioner was otherwise entitled to the said pay scale, his pay was fixed at Rs. 1700/- p.m. on the premise that he was on Foreign Service. While working in the CAT as Gazetted Officer holding a lien to his substantive post in the P& T department, North East Circle, Shillong, Petitioner applied for the post of Stenographer Grade-I under the Gauhati High Court [High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh (for short High Court)]. Petitioner and others faced the recruitment test for the said post of Stenographer Grade-I under the Gauhati High Court and he was selected for the post of Stenographer Grade-I in the pay scale of Rs. 1125-1775/- p.m. By notification dated 12.6.87 issued by the Registrar (Judicial) of the Gauhati High Court, Petitioner was appointed to the said post of Stenographer Grade-I and thereon a request was made by the High Court to his parent department, i.e. P&T North East Circle, Shillong to release the Petitioner so as to enable him to join as Stenographer Grade-I in the Gauhati High Court. 4. 4. Upon the said request tendered by the new employer, i.e. Gauhati High Court, the Petitioner was released from his department and joined as Stenographer Grade-I. When the Petitioner was allowed to join as Stenographer Grade-I, there was a condition that Petitioner can revert back to his parent department, i.e. P&T, North East Circle, Shillong, within a period of two years lien. During the subsistence of lien period, the Petitioner was orally assured by the High Court that his pay in the parent department, i.e. P & T North East Circle, Shillong would be protected consequent whereupon the Petitioner joined as Stenographer Grade I in the Gauhati High Court. 5. The Deputy Registrar (A/Cs & Apptt), Gauahti High Court, Gauhati under his letter being No. HC. VIII/76/3153/AC, Gauhati the 26th February 1988 requested the Deputy Secretary to the Government of Assam, Finance Department, for fixation of the pay of the Petitioner as Stenographer Grade-II. In that letter dated 26.2.88 it was clearly mentioned that FR 22C (since repealed), now FR 22(1)(a) (I) provides where a Government servant holding a post, in a substantive or temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him, his initial pay in the time scale of higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which stage such pay has accrued and also that when a Government servant is appointed to a post under the Central Government and post carries duties and responsibilities of greater importance than those attached to the post held by him, his pay is to be fixed under FR 22C. Further, it was also mentioned that Rule 37 of the Gauhati High Court (Appointment, Condition of Service & Conduct) Rules, 1967 provides that subject to the provisions of those Rules and order for the time in force applicable to the Government servant of corresponding class in the service of the State shall mutatis mutandis regulate the service of the persons who are members of the Gauhati High Court Service; and in that view of the matter since the post of Stenographer Grade-I of the Gauhati High Court carries duties and responsibilities of greater importance within the meaning of FR 22C, the scale of the Petitioner had been fixed at Rs. 1555/- p.m. 6. Again, Deputy Registrar (Admn.) Gauhati High Court under his letter-dated 23.3.88 requested the Deputy Secretary to the Government of Assam for approval to the pay scale of the Petitioner as Stenographer Grade-I at Rs. 1555/- p.m. For easy reference, the relevant portion of the said letter of the Deputy Registrar (Admn.) dated 23.3.88 is reproduced below: ... Sri R. S. Bhattacharjee was serving as a Stenographer Grade-II in the Postal Department, N. E. Circle, and Shillong and was drawing basic pay @ Rs. 1440/- in the pay scale of Rs. 1400-40-1800-EB-60-2300 with effect from 1.1.1986. He was sent on deputation as Stenographer Grade-'C' in the Central Administrative Tribunal and was posted as such in the Gauhati Bench of the said Tribunal with effect from 3.2.1986. As Stenographer Grade-'C' in the C.A.T., Shri Bhattacharjee was allowed to draw his grade pay as in the parent department together with 20% Deputation allowance. While in such service Shri Bhattacharjee was given an ad hoc promotion to the post of Stenographer Grade-'B' with effect from 4.11.86 and his pay was fixed at Rs. 1700/-. Thereafter Sri Bhattacharjee applied through his parent department, i.e. P.M.G./Shillong to appear in the interview for the post of Stenographer Grade-I in the Gauhati High Court. Shri Bhattacharjee was duly selected and was appointed as Stenographer Grade-I in the Gauhati High Court in the pay scale of Rs. 1125-50-1375-EB-60-1975 vide Notification No. HC. V-66/85/12 Estt. dated 12.6.1987 issued by the Registrar (J), Gauhati High Court. A copy of the said notification was sent amongst others to the P.M.G./Shillong with a request to release Sri Bhattacharjee in order to enable him to join in the High Court. 1125-50-1375-EB-60-1975 vide Notification No. HC. V-66/85/12 Estt. dated 12.6.1987 issued by the Registrar (J), Gauhati High Court. A copy of the said notification was sent amongst others to the P.M.G./Shillong with a request to release Sri Bhattacharjee in order to enable him to join in the High Court. Sri Bhattacharjee was thereafter released vide Memo No. Staff/35/4208/1 dated 17.7.87 issued by the A.P.M.G. (Staff), Shillong from his parent department to join his new assignment as Stenographer Grade-I in the Gauhati High Court subject to the conditions that he would opt for permanent absorption of seek reversion to his parent department within a period of two years or resign from the post held in the parent department after 2 years. Pursuant to the above memo, dated 17.7.87 Sri Bhattacharjee was also released from the Central Administrative Tribunal and he joined the service at Gauhati High Court as Stenographer Grade-I on 28.8.1987. As is apparent from the above Sri Bhattacharjee is still a permanent Central Govt. employee, presently employed as Stenographer Grade-I, Gauhati High Court and holds a lien in his parent department. FR 22/C provides that where a Government servant holding a post in a substantive temporary or officiating capacity is promoted as appointed in a substantive temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him his initial pay in the time scale of higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of lower post by one increment at the stage at which such pay has accrued. It is relevant to state here that when a State Government servant is appointed to a post under the Central Government and the post carries duties and responsibilities of greater importance attached to the post held by him under the State Government his pay is also to be fixed under FR 22-C. Rule 37 of the Gauhati High Court (Appointment Conditions of Service and Conduct) Rules, 1967 provides that subject to the provisions of those rules, rules and orders for the time being in force and applicable to the State Government servants of corresponding class in the service of the State shall mutatis mutandis regulate the service of persons who are members of the Gauhati High Court service. In the present facts and circumstances, the provision of F.R. 22-C is therefore applicable in case of fixation of pay of Sri Bhattacharjee. It may be relevant to mention that there is nothing in the F.R. which prohibits the fixation of pay under F.R. 22-C in case of a Central Government employee holding a lien in his parent department who is promoted or appointed in a substantive temporary or officiating capacity to a post under the State Government carrying duties and responsibilities of greater importance. As aforesaid Rule 37 of the High Court Rules laid down that the provisions of the F.R. would also apply in case of members of the High Court service. In view of the above there appears to be no bar either in the High Court service rules or to F.R. to have the pay of Sri Bhattacharjee as Stenographer Grade-I fixed under F.R. 22-C with due regard to his present pay in his parent department. It may be mentioned herein that the post of Stenographer Grade-I of the Gauhati High Court carrying duties and responsibilities of greater importance within the meaning of F.R. 22-C and as such, his interim pay has been fixed at Rs. 1555/-. This is for favour of kind approval of the Government. Yours faithfully, Sd/-(K. Deka) 25.2.88 Deputy Registrar (Admn.) Gauhati High Court, Gauhati. 7. Under Article 229(1) of the Constitution of India appointment of the officers and servant of the Gauhati High Court shall be made by the Chief Justice of the Court or such other Judge or Officer of the Gauhati High Court as he may direct. Further, under Article 229(2) the condition of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or such other Judge or Officer of the Court authorized by the Chief Justice to make Rules for the purpose subject to the provisions of any law made by the legislature of the State and that rule made under Article 229(2) shall as far as they relate to salary, allowances, leave or pension requires approval of the Governor of the State. Article 229 of the Constitution of India clearly speaks that Chief Justice of the High Court is the sole authority to decide the condition of service of officers and servants of the High Court and approval of the Governor of the State is required only in respect of the rules or the conditions which relate to salary, allowance, leave or pension. 8. The Chief Justice of the High Court, in exercise of the powers conferred by Article 229 of the Constitution of India made Rules called, "Gauhati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) Services (Appointment, Conditions of Service & Conduct) Rules, 1967. Rule 37 read as follows: 37. Other conditions of service--(i) Subject to the provisions of these rules and orders for the time being in force and applicable to the Government servant of corresponding classes in the service of the State shall mutatis mutandis regulate the service of persons serving on the staff attached to this High Court: Provided that the powers exercisable under the said rules and orders by the Governor of the State of Assam or by any authority subordinate to the Governor of the State of Assam shall be exercisable by the Chief Justice or any such person as he may, by special or general order, direct. (ii) any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the High Court shall be decided by the Hon'ble Chief Justice. 9. It would be profitable in the present case to reproduce F.R. 22 (1)(a) (I) inasmuch as the High Court and the Petitioner for fixation of his pay scale heavily relied on it. F.R. 22 (1) (a) (I) read as follows: F.R. 22. 9. It would be profitable in the present case to reproduce F.R. 22 (1)(a) (I) inasmuch as the High Court and the Petitioner for fixation of his pay scale heavily relied on it. F.R. 22 (1) (a) (I) read as follows: F.R. 22. (I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows: (a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility condition as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or (Rupees one hundred only), whichever is more. (Save in cases of appointment on deputation to an ex-cadre post, or to a post on ad hoc basis or on direct recruitment basis), the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time-scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to the exercised within one month from the date of such regular appointment. In cases where an ad hoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to the exercised within one month from the date of such regular appointment. Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post on (Rupees One hundred), whichever is more. 10. Petitioner accepted the post of Stenographer Grade I in the High Court only on the basis of oral assurance of protection of last pay given in his favour by the High Court. Such assurance was made by the High Court for that the post of Stenographer Grade-I of the High Court carries duties and responsibilities of greater importance than those attached to the substantive post of the Petitioner namely Stenographer Grade-II in P&T, NE Circle, Shillong and his initial pay in the post of Stenographer Grade-I had to be fixed in view of the benefits of F.R. 22C which is now FR 22(1)(a)(I). The recommendation or fixation of the pay scale of the Petitioner in view of the benefit of F.R. 22C and his last pay in his substantive post, namely Stenographer Grade-II in the P&T, NE Circle, Shillong by the High Court had not been accepted or/approved by the State Government, but, on the contrary, on expiry of the period of lien of 2 years; fixed the pay of the Petitioner in the basic pay of Rs. 1125-1975 pm vide letter of the Officer on Special Duty to the Government of Assam (Judicial Department) being No. JDJ.84/88/6 Dispur 31st January, 1989. 11. In response to that letter-dated 31.1.89, the Deputy Registrar (Judicial) vide his letter being No. HC. VIII/76/25, 770/AC, Gauhati the 27th Sept. 1989 requested the Secretary to the Govt. of Assam to review the said decision of the Govt. of Assam and accord approval to the fixation of pay of the Petitioner at Rs. 11. In response to that letter-dated 31.1.89, the Deputy Registrar (Judicial) vide his letter being No. HC. VIII/76/25, 770/AC, Gauhati the 27th Sept. 1989 requested the Secretary to the Govt. of Assam to review the said decision of the Govt. of Assam and accord approval to the fixation of pay of the Petitioner at Rs. 1555 under F.R. 22-C as done by this Court, and that at the time of appointment of the Petitioner as Stenographer Grade-I in the High Court, he was given verbal assurance by the High Court that his pay in P&T, NE Circle, Shillong as Stenographer Grade-II (1400-2300) would be given due protection as per rules as the High Court was facing much inconvenience for the death of efficient Stenographer. For easy reference, the said letter of the Deputy Registrar (Judicial) Gauhati High Court dated 27.9.1989 is quoted herein below: From: Shri P.C. Borpujari, M.A., B. Com, LL.B., Deputy Registrar, Gauhati High Court. To The Secretary to the Govt. of Assam, Judicial Department, Dispur, Guwahati-6 Dated, Guwahati, the 27.9.1989 Subject: Fixation of pay of Sri R. S. Bhattacharjee, Stenographer Grade-I, Gauhati High Court (review thereof). Reference: Your letter No. JDJ-84/88/6, dated 31.1.89. Sir, In inviting a reference to your letter quoted above, I am again directed to say that Shri R. S. Bhattacharjee was appointed as Stenographer Grade-I while he was working as Stenographer Grade-II in the P&T Department under the Government of India on the basis of the selection by this Hon'ble High Court and his appointment was given due preference in order of merit. While appointment Shri Bhattacharjee, was given verbal assurance that his pay scale of P& T Deptt. as Stenographer Grade-II (Rs. 1400-2300/-) would be given due protection as per Rules as the High Court was facing much inconvenience for the death of efficient Stenographer. Now, the question is, if the Govt. in the Finance Department considers that his appointment was made from a higher to a lower scale and his pay fixation is not covered by the existing provision of the Assam Fundamental Rules, then his last pay drawn in the former post may kindly be given protection in the analogy of the case of Shri Iresh Chakravorty, who was given protection of pay under F.R.27 while he was appointed under the Govt. of Assam as Judicial Magistrate as prior to his joining the State Govt. of Assam as Judicial Magistrate as prior to his joining the State Govt. he was a Central Excise Inspector under the Central Govt. In view of this, the case of Shri Bhattacharjee also deserves sympathetic consideration on principles of equity and justice. In view of the above cited analogy, the Govt. in the Finance Deptt. may again be moved to review the matter and accord their approval to the fixation of pay of Shri Bhattacharjee at Rs. 1555/- under F.R. 22-C as was done by this High Court. OR If F.R. 22-C is not applicable, then the Govt. may kindly be pleased to give him protection of pay like that of Shri Iresh Chakravorty under F.R.27. OR If the appointment of Shri Bhattacharjee is considered to be made from a higher scale to lower one then he may be given protection of his pay which had last drawn in his former post by invoking F.R. 27 in the spirit of F.R. 22 (1) (a)(I). An early reply in this respect will be higher appreciated. Sd/-Illegible. 23.9.89. Registrar (Judicial) 12. The High Court vide the said letter dated 27.9.89 had clearly pointed out the instance similar with the case of the Petitioner where the Govt. of Assam had given protection of pay to Govt. employee in his former post and also the case of Shri Iresh Chakravorty when he was appointed under the Govt. of Assam as Judicial Magistrate. In the case of Shri Iresh Chakravorty, the Govt. of Assam under the letter of the Under Secretary to the Govt. of Assam, Finance (Establishment Department) dated 31.3.71 had informed the Law Department, Govt. of Assam that Finance Department agreed to fix the pay scale of Iresh Chakravorty by protecting his pay in his earlier post, i.e. Central Excise Inspector under F.R. 27 by granting advance increment. FR 27 contemplates that subject to any general or special order that may be made by the President in his behalf, an authority may grant a premature increment to a Govt. servant on a time scale of pay, if it has power to create a post in the same cadre on the same scale of pay. 13. The Petitioner, in the meantime was transferred to the Gauhati High Court, Agartala Bench. servant on a time scale of pay, if it has power to create a post in the same cadre on the same scale of pay. 13. The Petitioner, in the meantime was transferred to the Gauhati High Court, Agartala Bench. The Deputy Registrar (A/Cs) Gauhati High Court, Gauhati (Principal Seat) under his letter dated 3.8.90 informed the Deputy Registrar, Gauhati High Court, Agartala Bench that the Govt. fixed the pay scale of the Petitioner at Rs. 1125/- pm vide letter of the Govt. of Assam dated 31.1.89 and as a result there was overdraw of pay and allowance by the Petitioner at the tune of Rs. 4,943.43 paise. The said amount may be recovered from him. 14. The Petitioner filed representation dated 7.8.90 to the Registrar (Judicial) Gauhati High Court requesting him to place the matter before the Hon'ble Chief Justice to exercise his power and jurisdiction under Article 229 of the Constitution of India and Rule 37 of the Gauhati High Court Rules, 1967 for protecting last pay of the Petitioner at the P&T Department, NE Circle, Shillong and to fix his pay at Rs. 1555/- pm pursuant to the commitment of the High Court to protect the last pay of the Petitioner at his parent department. But, it was not fruitful. Having left the Petitioner in this situation, there was no alternative except to approach this Court in judicial side by filing writ petition. Accordingly, the Petitioner filed writ petition, being C.R. No. 303 of 1990 in this Court against the present Respondents praying for quashing the said letter of the Govt. dated 31.1.89 for fixing pay scale of the Petitioner as Stenographer Grade-I at Rs. 1125/- w.e.f. from the date of joining the post; the letter of the Govt. dated 29.3.90 that the Govt. had decided to stick to their earlier decision vide the said letter dated 31.1.89 and also the said letter of the Deputy Registrar (A/Cs) dated 3.8.90 to the Deputy Registrar, Gauhati High Court, Agartala Bench to recover the so called excess withdrawal of pay and allowances to the tune of Rs. 4,943.43 paise from the Petitioner and also for a direction to fix the pay scale of the Petitioner at the higher initial i.e. Rs. 4,943.43 paise from the Petitioner and also for a direction to fix the pay scale of the Petitioner at the higher initial i.e. Rs. 1555/- pm at the time of joining the post of Stenographer Grade-I in the Gauhati High Court and subsequent increment as may be due on his appointment in the pay scale of Rs. 1125-1975/- p.m. in pursuance of the commitment made to the Petitioner by the High Court at the time of joining the service of the High Court as Stenographer Grade-I. 15. This Court vide judgment and order dated 7.11.97 had allowed the writ petition and directed the Government of Assam to waive the excess pay drawn by the Petitioner as per fixation made by the High Court and also that High Court may not recover the excess pay drawn by the Petitioner. In the judgment and order dated 7.11.97 this Court made a clear finding that in the case of Iresh Chakravorty, Govt. of Assam had protected his last pay when he joined the Assam Judicial Service. On the same analogy the High Court requested the Assam Govt. either to protect the pay of Shri Bhattacharjee (Petitioner) or to allow the fixation of pay made by the High Court under FR 22-C at Rs. 1555/- pm. In the letter of the Government of Assam dated 31.3.71 (Annexure -7 to the writ petition), it appears that the pay of Shri Iresh Chakravorty in the scale of pay of Rs. 350-1000/- was fixed at the stage of Rs. 380/- pm. Therefore, it is obvious that pay of Shri Chakravorty was protected when he joined the Assam Judicial Service from his Central Govt. service as Inspector in the Excise Department. But no reason was given by the Assam Govt. in their letter dated 31.1.89 or in the letter dated 29.3.90 why the Petitioner (present Petitioner) has been discriminated as against Shri Iresh Chakravorty. 16. This Court also in the judgment and order dated 7.11.97 made a clear finding that Assam Govt. should have protected the pay of the Petitioner at Rs. in their letter dated 31.1.89 or in the letter dated 29.3.90 why the Petitioner (present Petitioner) has been discriminated as against Shri Iresh Chakravorty. 16. This Court also in the judgment and order dated 7.11.97 made a clear finding that Assam Govt. should have protected the pay of the Petitioner at Rs. 1480/- which he was drawing in his parent department, i.e. P&T NE Circle, Shillong at the time of joining High Court service and also that Stenographer Grade-I in the High Court service carries duties and responsibilities of greater importance then the post of Stenographer Grade-II in the P&T Department, NE Circle, Shillong and last pay of the Petitioner should have been protected in the line fixed by the High Court under F.R. 22-C. The High Court was of the further view that there was no fault of the Petitioner or any foul-play of the Petitioner in drawing higher pay. Accordingly, there should not be any recovery. For convenience and better understanding the relevant portions of the earlier findings of this Court in Paras 7, 8, 9, 11 and 12 of the judgment and order dated 7.11.97 (Annexure-P/14) are quoted below: 7. It is an admitted fact that the Government can relax any of the conditions of any Rule while the application of such Rule will cause undue hardship to any Government servant. In the present case the High Court has fixed the pay of the Petitioner at Rs. 1555/- by applying the provisions of F.R. 22-C. Even if such fixation is not permissible while fixing the pay of a Government servant from a higher scale to lower scale there appears to be no bar to protect the pay of the Govt. servant, which he was drawing in the higher scale at the time of joining his post in the lower scale. This contention gets support from the letter of the Assam Government dated 31.3.1971 at Annexure-8 that the Assam Government has protected the pay of Shri Iresh Chakravorty at Rs. 380/- in the scale of pay of Rs. 350-1000/-. Therefore, I am of the view that the Assam Government should have protected the pay of the Petitioner at Rs. 1480/-, which he was drawing in his parent department of P&T, N.E. Circle. Shillong at the time of joining the High Court service. 8. The person joins in the Govt. 380/- in the scale of pay of Rs. 350-1000/-. Therefore, I am of the view that the Assam Government should have protected the pay of the Petitioner at Rs. 1480/-, which he was drawing in his parent department of P&T, N.E. Circle. Shillong at the time of joining the High Court service. 8. The person joins in the Govt. service with the hope and aspiration that he will be given promotion from time to time and his pay will be increased with the continuity of his service in the Government Department. If the pay of the Government servant is not protected then he is bound to suffer from frustration and the Government cannot expect a sincere service from such dissatisfied Government servant. Therefore, in all fairness the pay of the Govt. servant should always be protected when he joins from one department to another department whether he is from lower scale to higher scale or from higher scale to lower scale. In the instant case, it appears from the letter of the Gauhati High Court dated 15.7.88 (Annexure-3) that the High Court has given sufficient reasons that the post of Stenographer Grade-I in the High Court service carries duties and responsibilities of greater importance then the post of Stenographer Grade-II in the P&T Department of N.E. Circle, Shillong. 9. After going through the letters of the Gauhati High Court I am of the view that the Assam Government should have appreciated the contention of the High Court and should have protected and fixed the pay of the Petitioner in the lines fixed by the High Court under F.R. 22-C. If the Rule does not permit such fixation then I am of the view that the Assam Government should have at least protected the pay of the Petitioner at Rs. 1480/-, which he was drawing in his parent department at the time of joining in the High Court service. From the letter of the High Court dated 27.9.89 at Annexure-5 it further appears that a verbal assurance was given to the Petitioner that his pay will be protected and accordingly, the High Court fixed the pay of the Petitioner at Rs. 1555/- under F.R.22-C and paid him the salary accordingly. From the letter of the High Court dated 27.9.89 at Annexure-5 it further appears that a verbal assurance was given to the Petitioner that his pay will be protected and accordingly, the High Court fixed the pay of the Petitioner at Rs. 1555/- under F.R.22-C and paid him the salary accordingly. Since the Petitioner has joined the High Court service as per verbal assurance of his protection of pay, it may not be permissible to withdraw the benefit at such a late stage. Further at the time of joining the High Court service as Stenographer Grade-I, the Petitioner was having the lien in his parent department for a period of two years. The Petitioner joined the High Court service in June, 1987 and his lien has expired in June, 1989 and the Assam Government has intimated their final decision only in August, 1990. Therefore, there is no scope for the Petitioner to go back to his parent department specially when his period of lien is over and he has been absorbed in the High Court service. The non-approval of the Assam Government regarding the protection of pay of the Petitioner does not appear to be legal and justified specially in view of the fact that in the case of Shri Iresh Chakravorty the Assam Government has protected the pay of said Shri Chakravorty while he joined the Assam Judicial Service. There appears to be no reason to deny the same benefit to the Petitioner, Shri Bhattacharjee who also joined from Central Government service to State Government service. The Petitioner has drawn his pay in accordance with the fixation made by the High Court under F.R. 22-C. Due to the delay of communication of the decision of the Assam Govt. the Petitioner has drawn his salary as per fixation made by the High Court. The Assam Govt. should have intimated their decision immediately when the High Court requested the Assam Govt. for protection of the pay of the Petitioner in their letter dated 26.2.1988 (Annexure-I). If the Petitioner is asked to refund the excess pay at this belated stage, it will definitely affect the Petitioner adversely and he will have to face extreme financial hardship. 11. I do not find any fault with the Petitioner or I do not find any foul play of the Petitioner in drawing the higher pay. If the Petitioner is asked to refund the excess pay at this belated stage, it will definitely affect the Petitioner adversely and he will have to face extreme financial hardship. 11. I do not find any fault with the Petitioner or I do not find any foul play of the Petitioner in drawing the higher pay. The higher pay drawn by the Petitioner is due to the fixation made by the High Court. The non-approval of such fixation by the Assam Government after a long period will cause only undue hardship to the Petitioner. Further the Petitioner at this stage cannot go back to his parent department as his period of lien has already been terminated. Considering all the facts and circumstances, I am of the view that the excess pay, if any, drawn by the Petitioner due to the fixation of his pay by the High Court should be required to be waived and such excess pay should not be recovered from him. 12. Accordingly, the petition is allowed. The Assam Government is directed to waive the excess pay drawn by the Petitioner as per fixation made by the High Court and the High Court may not recover the excess pay drawn by the Petitioner in the pay fixed by the High Court. (emphasis supplied) 17. Deputy Registrar, Gauhati High Court, Agartala Bench issued a Memorandum being No. F. 9 (6)(7)-HC/88-2003/2008-011 dated Agartala, 20th Sept. 2003 purportedly consequent upon the judgment and order of this Court dated 7.11.97 passed by this Court in CR No. 303 of 1990 (present Petitioner v. Gauahti High Court and Ors.) that the High Court was pleased to waive the excess pay drawn by the Petitioner till 7.11.97. Hence, the excess amount drew w.e.f. 8.11.97 will be recovered in 75 (seventy five) easy installments from the Pay Bill for the month of October 2003 onwards. The Deputy Registrar, Gauahti High Court, Agartala Bench also issued the order being No. F-9(b)(7) HC/88-2003/8292-97 Agartala, 26th Sept. 2003 that pursuant to the Memorandum dated 20.9.03 quantum of excess amount of pay drawn by the Petitioner during the period from 8.11.97 to 30.9.03 stands at Rs. 1,16,430/- (Rupees One lakh sixteen thousand four hundred thirty only), which will be recovered from the pay bill of the Petitioner in seventy five installments @ Rs. 1,550/- pm (Last installment being Rs. 1,16,430/- (Rupees One lakh sixteen thousand four hundred thirty only), which will be recovered from the pay bill of the Petitioner in seventy five installments @ Rs. 1,550/- pm (Last installment being Rs. 1,730/-) and this will take effect from the pay bill for the month of October, 2003. Petitioner being aggrieved filed the present writ petition for quashing the impugned Memorandum dated 20.9.03, the impugned order dated 26.9.2003 and the pay bill dated 22.10.03 consequent to the impugned Memorandum dated 20.9.03. 18. This Court passed an interim order dated 28.10.03 in Misc. Application No. 290/03 (Ref. present writ petition) that the operation of the impugned orders and Memorandum shall not be given effect to. 19. The State Respondents did not file affidavit in-opposition in the present case. The Respondent High Court, i.e. Respondents-1 and 2 in their affidavit in-opposition, did not deny that the pay scale of the Petitioner as Stenographer Grade-II in the P&T Department, NE Circle, Shillong was Rs. 1400-2300/- pm, and while holding the lien to his substantive post, i.e. Stenographer Grade-II in the Department of P&T NE Circle, Shillong, the Petitioner applied for the post of Stenographer Grade-I under the High Court and that while appointing the Petitioner as Stenographer Grade-I of the Gauhati High Court, he was given verbal assurance that his last pay in his substantive post, i.e. Stenographer Grade-II in the P&T, NE Circle (Rs. 1400-2300/- p.m.) will be given protection as per rules as the High Court was facing much inconvenience for the dearth of efficient Stenographer and that fixation of the pay scale of the Petitioner at the time of his joining as Stenographer Grade-I in the High Court was at Rs. 1555/- pm under F.R. 22-C as done by the High Court in other cases and also that High Court is the sole authority to decide duties and responsibilities of the Petitioner as Stenographer Grade-I and also that the post of Stenographer Grade-I in the High Court service carries duties and responsibilities of greater importance then those attached to the post of Stenographer Grade-II in the P&T Department NE Circle, Shillong. 20. In Roshan Deen v. Preet Lal, reported in (2002) 1 SCC 100 : (2002 Lab IC 106), the Apex Court observed that purpose of power conferred in High Court under Articles226 and 227 of the Constitution of India is to advance justice, not to thwart it. 20. In Roshan Deen v. Preet Lal, reported in (2002) 1 SCC 100 : (2002 Lab IC 106), the Apex Court observed that purpose of power conferred in High Court under Articles226 and 227 of the Constitution of India is to advance justice, not to thwart it. Even when justice is the by-product of an erroneous interpretation of law, High Court ought not to wipe out such injustice in the name of correcting the error of law. Apex Court in Air India Statutory Corporation v. United Labour Union and Ors., reported in 1997 (2) SC 165: 1997 Lab IC 365, held that the founding father placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self imposed limitation. The arm of the Court is long enough to reach in justice whenever it is found. In the State of Maharashtra v. Digambar, reported in (1995) 4 SCC 683 : AIR 1995 SC 1991 , the Apex Court held that the power of the High Court to be exercised under Article 226 of the Constitution of, if it is discretionary, its exercise must be judicious and reasonable admits of no controversy. 21. The Apex Court in State of Maharashtra v. Association of Court Stenos PA, PS and Anr., reported in AIR 2002 SC 555 : 2002 Lab IC 530, held that the High Court in its discretionary jurisdiction under Article 226 of the Constitution cannot itself examine the nature of the work of its employees and issue a mandamus directing a particular pay scale to be given to such employee. The Court, further, clarifies that this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employees and apply the principle of 'equal pay for equal work' in appropriate case. 22. Article 226 is designedly couched in a wide language in order not to confine the power conferred by it on the High Courts only to the power to issue prerogative writs as understood in England. The High Courts exercising jurisdiction under Article 226 can issue directions, orders or writs so as to enable the High Courts to reach injustice wherever it is found and to mould the reliefs to meet the particular and complicated needs of this country. (Ref. The High Courts exercising jurisdiction under Article 226 can issue directions, orders or writs so as to enable the High Courts to reach injustice wherever it is found and to mould the reliefs to meet the particular and complicated needs of this country. (Ref. Comptroller and Auditor General of India v. K. S. Jagannathan (1986) 2 SCC 679 ). 23. The Apex Court in the case of Comptroller and Auditor General of India v. K. S. Jagannathan (1986) 2 SCC 679 upon considering a large number of decisions including Dwarka Nath v. ITO AIR 1966 SC 81 , Hochtie Gammon v. State of Orissa (1975) 2 SCC 649 , Mayor of Rochester v. R.: 1858 EB & E 1024: 120 ER 791:27 LJ QB 434, R. v. Revising Barrister for the Borough of Hanley: (1912) 3 KB 518: 81 LJ KB 1152 and Padfiled v. Minister of Agriculture, Fisheries and Food: 1968 ACC 997:(1968) 1 ALL ER 694 and Halsbury's Laws of England, 4th Edn., Vol. I. para 89 observed: (SCC pp. 692-93, para 20): 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the Court may itself pass an order or give direction which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. (emphasis in original) 24. Lord Diplock stated the broad principles of judicial review in his speech in Council of Civil Service Union v. Minister for the Civil Service, 1985 AC 374 that illegality, irrationality and procedural impropriety, have greatly been overtaken by other developments, as for example, generally not only in relation to proportionality and human rights but also in the direction of principles of legal certainty, notably legitimate expectations. 25. The power of judicial review of the High Court and also the Apex Court is now well defined in a number of decisions of the Apex Court. This Court will exercise its jurisdiction to entertain a writ application wherein public law element is involved. (See LIC of India v. Escorts Ltd (1986) 1 SCC 264 : AIR 1986 SC 1370 ; Food Corporation of India v. Jagannath Dutta AIR 1993 SC 1494 : 1993 Supp (3) SC 635 State of Gujarat v. Meghji Pethraj Shah Charitable Trust (1994) 3 SCC 552 ; Asstt. Excise Commr. v. Issac Peter (1994) 4 SCC 104 and National Highways Authority of India v. Ganga Enterprise (2003) 7 SCC 410 . In any event, the modern trend also points to judicial restraint in administrative action as has been held in Tata Cellular v. Union of India: (1994) 6 SCC 651 ; Monarch Infrastructure (P) Ltd. v. Commr. Ulhasnagar Municipal Corporation (2000) 5 SCC 287 ; W.B. SEB v. Patel Engg. Co. Ltd. (2001) 2 SCC 451 and LIC of India v. Consumer Education and Research Centre (1995) 5 SCC 482 : AIR 1995 SC 1811 . 26. Ulhasnagar Municipal Corporation (2000) 5 SCC 287 ; W.B. SEB v. Patel Engg. Co. Ltd. (2001) 2 SCC 451 and LIC of India v. Consumer Education and Research Centre (1995) 5 SCC 482 : AIR 1995 SC 1811 . 26. The Apex Court had interpreted the provisions of Article 229 and the proviso appended thereto in State of Maharashtra v. Association of Court Stenos PA, PS and Anr.. reported in AIR (2002) SC 141 (pp 141-46). Para 5 of the SCC in State of Maharashtra (supra) read as follows: On plain reading of Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the salaries etc. of the employees of the High Court, subject to the Rules made under the said article. Needless to mention, rules made by the Chief Justice will be subject to the provisions of any law made by the legislature of the State. In view of proviso to sub-article (2) of Article 229, any rule relating to the salaries, allowances, leave or pension of the employees of the High Court would require the approval of the Governor, before the same can be enforced. The approval of the Governor, therefore, is a condition precedent to the validity of the rules made by the Chief Justice and the so-called approval of the Governor is not on his discretion, but being advised by the Government. It would, therefore be logical to hold that apart from any power conferred by the Rules framed under Article 229, the Government cannot fix the salary or authorize any particular pay scale of an employee of the High Court It is not the case of the employees that the Chief Justice made any rules, providing a particular pay for the employees of the Court, in accordance with the constitutional provisions and that has not been accepted by the Governor. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principles of 'equal pay for equal work' and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees' Welfare Assn. v. Union of India: (2002) 4 SCC 247 this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame rules after taking into consideration all relevant factors including the recommendation of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-a-vis the employees of the Supreme Court, should equally apply to the Chief Justice of the High Court vis-a-vis the employees of the High Court. Needless to mention, notwithstanding the constitutional provision that the rules framed by the Chief Justice of a High Court, so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a rule, providing a particular pay scale for its employees, the same should be ordinarily approved by the Governor, unless there is any justifiable reason, not to approve the same. The aforesaid assumption is on the basis that a high functionary like the Chief Justice, before framing any rules in relation to the service conditions of the employees of the Court and granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis. (emphasis supplied) 27. The aforesaid assumption is on the basis that a high functionary like the Chief Justice, before framing any rules in relation to the service conditions of the employees of the Court and granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis. (emphasis supplied) 27. Clause (2) to Article 229 of the Constitution of India empowers the Chief Justice of the High Court to prescribe by rules, conditions of service of Officers and servants of the High Court, and by law control of its staff vests on the Chief Justice and while exercising such powers Chief Justice of the High Court would be bound by the limitation contained in proviso in Clause (2) of Article 229 of the Constitution of India and proviso appended thereto, approval of the President or/Governor of the State is required to be obtained in relation to the rules pertaining provisions as regards salaries, allowances, leave or pensions. Such proposal should ordinarily be granted as a matter of course. 28. The Apex Court in Supreme Court Employees' Welfare Association v. Union of India and Anr. (1989) 4 SCC 187 at para 46 held thus: 46...the conditions of service of the employees of the Supreme Court that are laid down by the Chief Justice of India by framing the rules will be final and conclusive, except that with regard to salaries, allowances, leave or pensions the approval of the President of India is required. In other words, if the President of India does not approve of the salaries, allowances, leave or pensions, it will not have any effect. The reason for requiring the approval of the President of India regarding salaries, allowances, leave or pension is the involvement of the financial liability of the Government. 29. The Apex Court in Union of India and Anr. v. S.B. Vohra and Ors.: (2004) 2 SCC 150 has discussed provisions of Article 229 of the Constitution of India which is pari materia with Article 146 of the Constitution of India and held that it is the primary duty of the Union or the State concerned normally to accept the suggestions made by the order of the high office like Chief Justice of a High Court and defer with his recommendation only in exceptional cases. Recommendation of the Chief Justice should ordinarily be approved by the State, refusal thereto must be for strong and adequate reasons. Paras 46, 47, 48, 50, 51 of the SCC in Union of India and Anr. v. S. B. Vohra (supra) read as follows: 46. Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The Appellant unfortunately did not perform its own duties. 47. In a matter of this nature the Appellant, with a view to show that its action is reasonable, was bound to perform its duties within a reasonable time. Reasonableness being the core of Article 14 of the Constitution of India would imply that the constitutional duties be performed within a reasonable time so as to satisfy the test of reasonableness adumbrated under Article 14 of the Constitution of India. 48. It has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-a-vis the effect of grant of a particular scale of pay to officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms; one of them being the quantum of work undertaken by he officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office. This aspect of the matter has been highlighted by this Court in the case of the judicial officers in All India Judges' Association v. Union of India as well as the report of the Shetty Commission. 50. required to be maintained by the holder of such office. This aspect of the matter has been highlighted by this Court in the case of the judicial officers in All India Judges' Association v. Union of India as well as the report of the Shetty Commission. 50. We agree with the submission of the learned Additional Solicitor General to the effect that the decision of the High Court had been rendered having its origin in A. K. Gulati (CWP No. 289 of 1991) which had a spiraling effect, particularly in the case of Assistant Registrars. That was more a reason why a competent authority of the Appellant should have taken immediate steps in holding a meeting with the Chief Justice or an authorized officer of the High Court. 51. Having regard to the aforementioned authoritative pronouncements of this Court, there cannot any doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons. In this case the Appellants even addressed themselves on the recommendations made by the High Court. They could not have treated the matter lightly. It is unfortunate that the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private Respondents had to file a writ petition. The question as regards fixation of a revision of the scale of pay of the High Court being within the exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same recommendations save and except for good and cogent reasons. (emphasis supplied) 30. The Apex Court in High Court Employees Welfare Association, Calcutta and Ors. v. State of W.B. and Ors. (2004) 1 SCC 334 held that the Chief Justice and other Judges of the High Court alone can really appreciate the special nature of the work done in the High Court. Para 11 of the SCC in High Court Employees Welfare Association, Calcutta (supra) read as follows: 11. The Government will have to bear in mind the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. The Government will have to bear in mind the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a Special Pay Commission consisting of Judges and Administrators shall be constituted by the Chief Justice in consultation with the Government to make a report and on receipt of such report, the Chief Justice and the Government shall thrash out the problem and work out an appropriate formula in regard to pay scales to be fixed for the High Court employees. Let such action be taken within six months from today. 31. On bare perusal of the letter or/order of the Government dated 31.1.89 it is clear that State Government had not given good reason for not accepting the recommendation of the proposal of the High Court for fixing the initial pay of the Petitioner by protecting his last pay under FR 22-C (since repealed) now F.R. 22(1)(a)(I) at Rs. 1555/- p.m. as the High Court considered and decided that the post of Stenographer Grade-I carries duties and responsibilities of greater importance in comparison to the substantive post of the Petitioner as Stenographer Grade-II in the P&T, NE Circle, Shillong. Such type of decision of the State Govt. for accepting the recommendation of the High Court without good reason is not sustainable in the eye of law in view of the decisions of the Apex Court discussed above. The State Govt. is expected to fix the pay scale of the Petitioner in the facts and circumstances discussed above under F.R.22 (1)(a)(I) inasmuch as it is crystal clear that essential requirements for protecting the last pay of an employee on his appointment to the another post carrying duties and responsibilities of greater importance then those attached to the post earlier held by him are fulfilled in the case of the present Petitioner (Shri R. S. Bhattacharjee) and therefore High Court had rightly fixed the initial pay scale of the Petitioner at the time of joining his post as Stenographer Grade-I of the High Court at Rs. 1555/- p.m. 32. 1555/- p.m. 32. Admittedly, State Government in the case of Iresh Chakravorty, his last pay was protected when he joined the Assam Judicial Service, but the State Government, has given no other reason for denying such treatment to the Petitioner at the time of fixation of his pay scale. This Court is of the view that State Govt. had not committed any illegality in protecting the last pay of Iresh Chakravorty who was working as Central Excise Inspector when he joined Assam Judicial Service. 33. The Apex Court in Union of India and Anr. v. International Trading Co. and Anr. (2003) 5 SCC 437 had discussed the principles of negative equality and held that merely because Government wrongly granted renewal of permit to some other non-renewal of permit to the Respondents cannot be challenged on the ground of discrimination and Article 14 does not contemplate repetition of wrong action. In the instant case as the action of the State Govt. for protecting the last pay of Shri Iresh Chakravorty, who was serving as Central Excise Inspector when joined Assam Judicial Service is very much legal and also the case of the Petitioner is similar to Iresh Chakravorty, State Govt. should have treated the present Petitioner equally as done in the case of Iresh Chakravorty. RECOVERY OF EXCESS PAY 34. In the present case it is clear that there is no fault or foul play of the Petitioner in enjoying the present scale and in other words Petitioner enjoyed higher pay scale due to no fault of his but it was for the decision and recommendation of the High Court which was not objected to by the State Govt. till the State Govt. issued the impugned order and Memorandum. Therefore, this Court is of the considered view that it would be unfair, after a long lapse of time, to order recovery of the alleged excess pay drawn by the Petitioner. The Apex Court in Shyam Babu Verma and Ors. v. Union of India and Ors., (1994) 2 SCC 521 , held that it shall not be just and proper to recover any excess amount which has already been paid to the employees for no fault of theirs. Para of 11 of Shyam Babu Verma and Ors. v. Union of India and Ors. (supra) read as follows: 11. v. Union of India and Ors., (1994) 2 SCC 521 , held that it shall not be just and proper to recover any excess amount which has already been paid to the employees for no fault of theirs. Para of 11 of Shyam Babu Verma and Ors. v. Union of India and Ors. (supra) read as follows: 11. Although we have held that the Petitioners were entitled only to the pay scale of Rs. 330-480/- in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560/- but as they have received the scale of Rs. 330-560/- since 1973 due to non-fault of theirs and that scale is being reduced in the years 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the Petitioners due to the fault of the Respondent, the Petitioners being in no way responsible for the same. (emphasis supplied) 35. The ratio laid down by the Apex Court in Shyam Babu Verma and Ors. v. Union of India and Ors. (supra) is also followed by the Division Bench of this Court in All Manipur Degraded Teachers Association v. State of Manipur and Ors. 2005 (2) GLT 32. Para Nos. 5, 6 and 8 of All Manipur Degraded Teachers Association v. State of Manipur and Ors. Runs as follows: 5. It is contended by Mr. A. Bimal Singh, learned Counsel for the Appellants that the Appellants have no grievance against such direction for framing of the said guideline and appropriate actions taken thereafter upon the same, but their only prayer is that the pay and allowances drawn by the Appellants as the graduate teachers at the time of up gradation shall not be recovered pursuant to the impugned orders. Praying for quashment of the impugned orders, he has placed reliance on two decisions of the Apex Court, namely, (1) Shyam Babu Verma and Ors. Praying for quashment of the impugned orders, he has placed reliance on two decisions of the Apex Court, namely, (1) Shyam Babu Verma and Ors. v. Union of India and Ors., reported in (1994) 2 SCC 521 and (2) Jaswant Singh v. Punjab Poultry Field Staff Association and Ors., reported in AIR 2002 SC 231 : (2002 Lab IC 135), wherein the Apex Court ruled that since the Petitioners therein received the higher scale due to no fault of theirs, it should only be just and proper not to recover any excess amount paid to them. For discharging their duties in a higher post, the incumbent was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties (para 11 of both the cited cases). 6. It is settled law that higher pay scale given erroneously to the incumbents without any default of theirs shall not be recovered. The interest of justice demands that where service of an employee has been utilized by the State in particular post after up gradation, he shall upon degradation from the said post, be entitled to get the salary and allowances of that higher post for the period during which he was holding the same. 8. Upon hearing the learned Counsel for the parties and also having regard the settled position of law as laid down in the above cited cases, we are of the view that the State Respondents are not entitled to make recovery of the excess pay including D.A. and other allowances as mentioned in the impugned orders that had been paid to the Appellants for their services rendered during those period from the date of their up gradation to graduate teachers till their degradation, from the Appellants. Accordingly the impugned orders are hereby quashed and set aside. 36. The Apex Court had discussed as to when and where recovery of excess amount paid to the employee is permissible in Purshottam Lal Das and Ors. v. State of Bihar and Ors. (2006) 11 SCC 492 and held that recovery has been permitted only in such cases where employees were guilty of producing forged certificate or appointment had been secured on non-permissible ground because of the concerned employees; Para's 7 and 8 of the SCC read as follows: 7. v. State of Bihar and Ors. (2006) 11 SCC 492 and held that recovery has been permitted only in such cases where employees were guilty of producing forged certificate or appointment had been secured on non-permissible ground because of the concerned employees; Para's 7 and 8 of the SCC read as follows: 7. So far as the recovery is concerned, in the normal course if the promotion/appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned Counsel for the State were rendered in a different backdrop. In those cases the Appellants were guilty of producing forged certificates or the appointments had been secured on non-permissible grounds. In that background this Court held that recovery is permissible. On the contrary, the fact situation of the present case bears some similarity to Sahib Ram v. State of Haryana 1995 Supp (1) SCC 18, Bihar SEB v. Vijay Bhadur (2000) 10 SCC 99 and State of Karnataka v. Mangalore University Non-Teaching Employees' Assn.: (2002) 3 SCC 302 . 8. In Bihar SEB v. Bijay Bhadur (2000) 10 SCC 99 , it was held as follows (SCC PP. 103-04). 9. Further, an analysis of the factual score at this juncture goes to show that the Respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 14-15 years to replenish the Board exchequer from out of the employees' salaries which were paid to them since the year 1979. It is on this score the High Court observed that as both the Petitioners have passed the examination though in the year 1993, their entitlement for relief couldn't be doubted in any way. The High Court has also relied upon the decision of this Court in Sahib Ram v. State of Haryana (supra) wherein this Court in Para 5 of the Report observed (SCC p. 20). 5. Admittedly the Appellant does not possess the required educational qualifications. Under the circumstances the Appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the Appellant had been paid his salary on the revised scale. 5. Admittedly the Appellant does not possess the required educational qualifications. Under the circumstances the Appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the Appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the Appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the Appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the Appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.' 10. The High Court also relied on the unreported decision of the learned Single Judge in Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the Appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the Appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however is restricted to the facts of the present writ Petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality. 37. For the foregoing reasons, decision of the State Govt. for not approving the recommendation of the High Court for fixing the pay scale of the Petitioner at the time of joining the post of Stenographer Grade-I in the Gauhati High Court in the given case at Rs. 1555/- pm is illegal, arbitrary; and State Govt. 37. For the foregoing reasons, decision of the State Govt. for not approving the recommendation of the High Court for fixing the pay scale of the Petitioner at the time of joining the post of Stenographer Grade-I in the Gauhati High Court in the given case at Rs. 1555/- pm is illegal, arbitrary; and State Govt. has to fix the pay scale of the Petitioner by resorting to F.R. 22(1)(a)(I) keeping in view the last pay of the Petitioner in his previous substantive post, i.e. Stenographer Grade-II in the P & T Department, NE Circle, Shillong and High Court rightly fixed pay scale of the Petitioner at Rs. 1555/- pm at the time of his joining as Stenographer Grade-I. Accordingly, State Govt. should issue appropriate order. Further, there cannot be recovery of the so-called excess withdrawal by the Petitioner in the given case. The impugned orders and Memorandum, i.e. impugned order/letter dated 31.1.89, 29.3.90, 3.8.90, Memorandum dated 20.9.2003 and order dated 26.9.2003 respectively are hereby quashed and set aside. 38. This writ petition is allowed. Parties are to bear their own costs. Petition allowed