Heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Mr. D.J. Barman, learned counsel appearing on behalf of Ms. B. Bhuiyan, learned Standing Counsel, PWD. None has appeared on behalf of the Finance Department, Government of Assam; Accountant General, Assam and the Comptroller and Auditor General of India. Even otherwise also in absence of any counter affidavit filed by the respondents, their stand is not discernible. The State Government in the PWD has also not filed any counter affidavit. 2. The petitioner is aggrieved by Annexure-7 and 13 communications dated 31.5.2002 and 7.4.2003. For a ready reference, the said two communications are reproduced below: Annexure-7 “OFFICE OF THE ACCOUNTANT GENERAL (A&E) ASSAM MAIDAMGAON, BELTOLA, GUWAHATI-29 NO. GE-3/PWD/7(42) DATE:31.5.2002 To The Addl. Chief Engineer, Planning O/O the Chief Engineer, PWD (Roads) Assam, Guwahati-3. Sub: Re-submission of the Service Book of Shri Anil Kr. Bharali, A.E.E. PWD Sir, I am to state that on reviewing the regulation of pay of Shri Anil Kr. Bharali, AEE, PWD on the basis of the Govt. letter No. FPC.41/90/Pt/18 dated 1.11.95 and FPC 41/90/Pt/59 dated 6.5.2002 it is revealed that the pay of Shri Bharali was wrongly fixed at the stage of Rs. 805/- p.m. on 1.5.84 with DNI 1.5.85 in the scale of pay Rs. 620/--1315/- instead of Rs. 670/- under Rule 12(2) of the R.O.P. 1983. You are therefore requested to resubmit the Service Book of Shri Bharali after refixation of his pay at the stage of Rs. 670/- p.m. on 1.5.84 with DNI 1.5.85 in the scale of pay of Rs. 620/--1315/- p.m. and the over payment made due to wrong fixation of pay upto the date of his promotion to the post of A.E. may please be adjusted at your end under intimation to this office. This may please be treated as „Most Urgent.? Yours faithfully Sr. Accounts Officer” Annexure-13 “OFFICE OF THE ACCOUNTANT GENERAL (A&E) ASSAM MAIDAMGAON, BELTOLA, GUWAHATI-29 NO. GE-3/PWD/7/18 DATE:3.4.2003 07 APR, 2003 To The Chief Engineer, PWD (Roads) Assam, Chandmari, Guwahati-3. Sub: Fixation of pay consequent upon revision of pay on 1.1.81 in respect of Shri Anil Kr. Bharali, J.E. (Now A.E.E.) Sir, With reference to the subject cited above, I am to state that after a lot of controversies and doubts raised in the fixation of pay of Shri Anil Kr. Bharali as Jr. Engineer on 1.5.84 the State Govt. Sub: Fixation of pay consequent upon revision of pay on 1.1.81 in respect of Shri Anil Kr. Bharali, J.E. (Now A.E.E.) Sir, With reference to the subject cited above, I am to state that after a lot of controversies and doubts raised in the fixation of pay of Shri Anil Kr. Bharali as Jr. Engineer on 1.5.84 the State Govt. in Finance Department in their Letter No. FPC.41/90/pt/18 dated 1.11.95 (Copy enclosed) had agreed that his pay will be fixed at Rs. 670/- on 1.5.84 with DNI 1.5.85 under Rule 12 (2) and Rule 10 of the Assam Services (ROP) Rules, 1983. Thereafter on pursuance of this office vide letter No. GE-3/PWD/7(42)/1019 dated 2.1.96 (Copy enclosed) the pay of Shri Bharali then J.E. was fixed at Rs. 670/- on 1.5.84 in the scale of Rs. 620/-1315/- p.m. and at Rs. 1835/- on 1.1.89 in the revised scale of pay Rs. 1375/-3375/- p.m. at your end vide your letter No. CE/Bill/39/83/48 dated 30.5.96 (Copy enclosed). In fact, the matter regarding fixation of pay of Shri Bharali on 1.5.84 was finally settled and according regular pay slips were issued to him since his appointment as A.E. from 2.3.90 and upto the publication of the Assam Services (ROP) Rules, 1998. Unfortunately, Shri Bharali?s case was erroneously reviewed on 10/97 and the department was wrongly asked to fix his pay at Rs. 805/- on 1.5.84 without taking the Government into cognisance in this regard vdie this office letter No. GE-3/PWD/1049 dated 23.10.97 (Copy enclosed). Thus wrong pay slip were also issued to Shri Bharali involving huge overpayments of pay & allowances in the posts of A.E. from 2.3.90 and A.E.E. w.e.f. 30.10.99. The above anomaly was detected again by this office in 11/2001 and the department i.e. Addl. C.E. Planning, PWD (Roads) was requested to set right the matter immediately vide this office Letter No. GE-3/PWD/7(42)/214 dated 31.5.2002 (Copy enclosed) this was followed by a reminder vide No. GE-3/PWD/2002-03/604 dated 2.9.2002 (Copy enclosed). There has been no reply from your office as yet. However, pending receipt of reply from your end, this office has already issued revised payslip from 2.3.90 till date. I would request to kindly fix his pay at Rs. 670/- p.m. on 1.5.84 with DNI on 1.5.85 in the scale of Rs. 620/-1315 p.m. and at Rs. 1835/- on 1.1.89 with DNI on 1.5.89 in the revised scale of pay Rs. I would request to kindly fix his pay at Rs. 670/- p.m. on 1.5.84 with DNI on 1.5.85 in the scale of Rs. 620/-1315 p.m. and at Rs. 1835/- on 1.1.89 with DNI on 1.5.89 in the revised scale of pay Rs. 1375/--3375/- p.m. and record the same in the Service Book under proper attestation. Service Book along with the statement of overpayment involved during the non-gazetted period (i.e. 1.5.84 to 1.3.90) may be resubmitted early for necessary action. An early action in this regard is requested. Yours faithfully Sd/- A.K. Das Sr. Accounts Officer” 3. The petitioner who is a diploma holder in Civil Engineering was first appointed as Sub-Engineer in the PWD (Roads) by order dated 27.1.1983 and he joined the post on 3.5.1983. After his such joining, the Government of Assam in the Finance (Pay Commission) Department published notification dated 27.6.1983 promulgating Assam Services (Revision of Pay) Rules, 1983, which came into force with effect from 1.1.1981. 4. After the initial appointment of the petitioner as aforesaid, he obtained AMIE degree in Civil Engineering in the year 1989 and thereafter was promoted to the post of Assistant Engineer by order dated 1.3.1990. 5. Admittedly the pay of the petitioner in the revised scale of Rs. 620-1315/- pursuant to the aforesaid ROP Rules, 1983 was fixed at Rs. 805/- and the petitioner continued to draw his salary on the basis of such fixation. The trouble for the petitioner started when the Finance Department, Government of Assam addressed Annexure-3 letter dated 7.2.1995 seeking clarification in respect of fixation of pay of the petitioner at the stage of Rs. 805/- with effect from 1.5.1984. After some correspondences, the office of the Accountant General Assam vide its above quoted impugned Annexure-7 communication dated 31.5.2002 addressed to the Additional Chief Engineer, Planning, PWD suggested that the pay of the petitioner was wrongly fixed at the stage of Rs. 805/- on 1.5.1984 with DNI 1.5.1985 in the scale of pay of Rs. 620-1315/- instead of Rs. 670/- under Rule 12(2) of the aforesaid ROP Rules. Accordingly a request was made by the said letter to re-fix the pay of the petitioner at the stage of Rs. 670/- with further request to recover the over payment made due to wrong fixation of pay. 6. 620-1315/- instead of Rs. 670/- under Rule 12(2) of the aforesaid ROP Rules. Accordingly a request was made by the said letter to re-fix the pay of the petitioner at the stage of Rs. 670/- with further request to recover the over payment made due to wrong fixation of pay. 6. The aforesaid letter was responded to by the petitioner vide Annexure-8 letter dated 21.8.2002 justifying the fixation of pay at the stage of Rs. 805/- which followed some other correspondences with the eventual impugned communication dated 7.4.2003 (Annexure-13) quoted above. 7. Mr. Medhi, learned counsel for the petitioner has referred to the provisions of Rule 6 and 12 of the ROP Rules, 1983 and the Appendix VII to the said Rules, which cites two examples of fixation of pay. According to him, in terms of the said examples furnished to the appendix, the pay of the petitioner is liable to be fixed at Rs. 775/-, if not at Rs. 805/-. 8. Mr. Barman, learned counsel, representing the PWD submits that since necessary clarification has been furnished by the office of the Accountant General, the said Department is bound by such clarification and that it can do nothing on its own. As indicated above, in absence of any counter affidavit filed by any one of the respondents, their stand is not discernible in the matter. For a ready reference, Rule 6 and 12 are quoted below: “6. As indicated above, in absence of any counter affidavit filed by any one of the respondents, their stand is not discernible in the matter. For a ready reference, Rule 6 and 12 are quoted below: “6. Save as otherwise provided in these rules, a Government servant who is in service on the 31st December, 1980 or who may have been appointed on or after the 1st January, 1981 shall draw pay in the revised scale applicable to the post/service which he has been holding or to which he may have been appointed, as the case may e, provided that a Government servant who is in service on the 31st December, 1980, or who enters service on or after the 1st January, 1981 but before the date of publication of these rules, may, at his option, continue to draw pay I the existing scale, until the date on which he earns his next or any subsequent increment (s) in the existing scale or until he vacates his post or eases to draw pay in that scale.” “12.(1) Where a Government servant who had, on any occasion or occasions, officiated in a post prior to the 1st January, 1981 but was not holding the post on that date, becomes eligible to draw pay in the revised scale on his subsequent appointment to the post, his initial pay in that scale, on the date of his so becoming eligible shall be fixed under the Fundamental Rules provided that it shall not be less than the emolument admissible to him on the last such occasion and he shall count for increment in the stage of the revised scale at which his initial pay is fixed, the period during which he drew that emolument on any previous occasion. (2) Where a Government servant entering service on or after the 1st January, 1981 but before the publication of these rules, retains the existing scale under Rule 6 and is brought over to the revised scale with effect from a date subsequent to the date of his appointment, his initial pay in the revised scale shall be fixed under the Fundamental Rules provided that it shall not be less than the emolument admissible to him in the existing scale and the period during which he drew that emolument shall be counted for increment in the stage of the revised scale at which his initial pay is fixed. (3) If the emolument referred to in sub-rules (1) and (2) does not correspond to a stage in the revised scale and is intermediate between two stages, pay would be fixed at the higher of the two stages.” 9. Appendix VII to the said Rules gives two examples for fixation of pay in the revised scale. In the instant case, the petitioner was drawing his salary in the pre-revised scale of Rs. 400-900/-, which was revised to Rs. 620-1315/-. Initially the post held by the petitioner was known as Sub-Engineer, Grade-I, but with the revision of pay, the post was re-designated as Junior Engineer. Appendix-VII citing the examples of fixation of pay in the revised scale is reproduced below: “THE ASSAM GAZETTE EXTRAORDINARY JULY 22, 1983 487 APPENDIX-VII EXAMPLE-I Existing scale Rs. 190-2-200-3-242-4-250 Revised scale Rs. 370-5-420-7-490 Existing emoluments Pay Rs. 200.00 Dearness Allowances, Additional Dearness Allowances and Ad-hoc Dearness Allowances Rs. 175.00 Rs. 375.00 Amount to be added @ 5% of Rs. 20.00 Rs. 200.00 subject to a minimum of Rs. 20.00 ----------------------- Total Rs. 395.00 Pay to be fixed in the revised scale Rs. 395.00 Pay fixed in the revised scale Rs. 395.00 EXAMPLE-II Existing scale Rs. 450-25-575-30-875-30-1025 Revised scale Rs. 745-35-920-40-1600 Existing emoluments Pay Rs. 575.00 Dearness Allowances, Additional Dearness Allowances and Ad-hoc Dearness Allowances Rs. 359.40 Rs. 934.40 Amount to be added @ 5% of Rs. 28.75 Rs. 575.00 subject to a minimum of Rs. 20.00 ----------------------- Total Rs. 963.15 Or Rs. 963.00 in round figure 10. Mr. Medhi, learned counsel for the petitioner has given his own calculation regarding fixation of pay of the petitioner in the revised scale in reference to the aforesaid provisions of Rule 6 and 12 and Appendix-VII, which is reproduced below: “Existing scale Rs. 400-20-500-EB-25-750-EB-30-900/- Revised scale Rs. 620-25-745-EB-30-895-EB-35-1315/- Emolument of petitioner in existing scale as on 1.5.1984 Basic Rs. 420/- Dearness allowance (80% of Basic) Rs. 336/- Rs. 756/- Pay should have been fixed on 1.5.84 at the stage of Rs. 775/- in the revised scale (Rs. 620-25-745-EB-30-895-EB-35-1315/-) with date of for next increments as on 1.5.1985 Pay was fixed at the stage of Rs. 805/- in the revised scale and later it was re-fixed at Rs. 670/- (Annexure-7). 11. From the above calculation made by the petitioner, what is seen is that as on 1.5.1984, the petitioner was drawing his emoluments totalling to Rs. 620-25-745-EB-30-895-EB-35-1315/-) with date of for next increments as on 1.5.1985 Pay was fixed at the stage of Rs. 805/- in the revised scale and later it was re-fixed at Rs. 670/- (Annexure-7). 11. From the above calculation made by the petitioner, what is seen is that as on 1.5.1984, the petitioner was drawing his emoluments totalling to Rs. 420 to which D.A. (80% of the basic) has been added, which is Rs. 336/-. According to the petitioner, his pay should have been fixed as on 1.5.1984 at the stage of Rs. 775/- in the revised scale of pay i.e. Rs. 620-25-745-EB-30-895-EB-35-1315 with the date for next increment as on 1.5.1985. Thus, the petitioner himself admitted that his pay was wrongly fixed at the stage of Rs. 805/- which ought to have been fixed at the stage of Rs. 775/-. 12. As regards the order for recovery from the pay of the petitioner for the alleged over payment, Mr. Medhi, learned counsel for the petitioner has placed reliance on the decision of the Apex Court reported in (1999) 2 SCC 521 (Shyam Babu Verma Vs. Union of India), in which as in the instant case, higher pay scale was erroneously given to the petitioners since 1973. Their pay scale was reduced in 1984. It was held by the Apex Court that since the petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. In the instant case also, there is nothing to show that the petitioner was instrumental in getting higher scale because of wrong fixation of pay. His pay was fixed in the revised scale at the stage of Rs. 805/- and he continued to draw his salary on the basis of such fixation of pay. However, it was years thereafter and to be precise in 1995 a clarification was sought for from the office of the Accountant General, Assam. What followed thereafter has been noted above. 13. The office of the Accountant General issued the impugned communications dated 31.5.2002 and 3.4.2002 fixing pay of the petitioner in the revised scale at the stage of Rs. 670/- which is less by Rs/ 105/-, if looked into from the above quoted calculation made by the petitioner. No reason has been assigned for doing so. 14. 13. The office of the Accountant General issued the impugned communications dated 31.5.2002 and 3.4.2002 fixing pay of the petitioner in the revised scale at the stage of Rs. 670/- which is less by Rs/ 105/-, if looked into from the above quoted calculation made by the petitioner. No reason has been assigned for doing so. 14. All the aforesaid aspects of the matter require serious consideration of the office of the Accountant General, Assam. It is submitted by Mr. Medhi, learned counsel for the petitioner that no recovery has been made from the salary of the petitioner pursuant to the impugned communications. 15. In view of the above, the matter is remanded back to the office of the Accountant General, Assam for a proper decision in the matter consistently with the observations made above. 16. Let entire exercise be carried out by passing a speaking order as expeditiously as possible, preferably within two months from today. _____________