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Judgment
Rajiv Sharma, J.—The petitioner was appointed as Clerk in the respondent-department. He was permitted to officiate as Accountant vide office order, dated 20.06.1966, in the pay scale of Rs. 80-5-150. He was reverted to his substantive post of Clerk w.e.f. 04.06.1971. He was again promoted as Accountant on 09.11.1973 and his pay was fixed at Rs. 260/- per month in the pay scale of Rs. 160-10-280-25-400/- after allowing him the benefit of five increments for officiating as Accountant w.e.f. 20.06.1966 to 03.08.1971, on the basis of Annexure P-1. During the course of audit inspection on 28.02.1981, Section Officer (Audit) pointed out that the petitioner has wrongly been fixed at Rs. 260/- on 09.11.1973. This audit para was not settled. Petitioner superannuated on 30.04.1991. The Director of Health Services, Himachal Pradesh, Shimla sent a communication to the Chief Medical Officer, Zonal Hospital, Mandi, District Mandi, H.P., informing him that the pay of the petitioner was wrongly fixed and a sum of Rs. 20,540/- was to be recovered from his salary. Petitioner assailed the order, dated 30.04.1993 by filing an Original Application bearing O.A. No. 1152/1993 before the erstwhile Himachal Pradesh Administrative Tribunal. The Original Application was treated as representation. According to the petitioner, it was decided without hearing him on 23.08.1995. Thereafter, the petitioner again filed O.A. (M) No. 165 of 2000 for the redressal of his grievance, which was transferred to this Court and assigned CWP (T) No. 7137 of 2008. It was decided by this Court on 09.12.2010. Petitioner was permitted to make a representation for the redressal of his grievance. Case of the petitioner was recommended by respondent No. 2 to the respondent No. 1. However, the fact of the matter is that the representation made by the petitioner was rejected on 10.02.2012. It is in these circumstances, the present petition has been filed by the petitioner. Mr. G.R. Palsra, learned counsel for the petitioner has vehemently argued that since his client has officiated as Accountant w.e.f. 20.06.1966 to 03.08.1971, his pay was rightly fixed under F.R. 22-C and F.R. 27. He then contended that audit objection was raised in the year 1981 and thereafter in the year 1992. He also contended that the letter, dated 30.04.1993 has been issued by respondent No. 2 to respondent No. 3 after superannuation of the petitioner, which took place on 30.04.1991.
Mr. Pramod Thakur, learned Additional Advocate General has vehemently argued that the petitioner''s pay was wrongly fixed.
I have heard the learned counsel for the parties and gone through the pleadings carefully.
It is not in dispute that the petitioner has officiated as Accountant w.e.f. 20.06.1966 to 03.08.1971. Thereafter, he was reverted on to his substantive post of Clerk on 04.06.1971. He was again promoted as Accountant on 09.11.1973. According to Annexure P-1, the pay of the petitioner was fixed under F.R. 22-C in the lower post of Clerk in the scale of Rs. 110-4-130/5-180/6-210/8-250 on 08.11.1973 at Rs. 198/- per month. His pay was notionally arrived at by allowing one increment in the lower pay scale at Rs. 204/- per month. The pay of the petitioner was fixed in the higher post of Accountant in the scale of Rs. 160-10-280/15-400 w.e.f. 09.11.1973 at Rs. 210/- per month. The pay of the petitioner w.e.f. 09.11.1973 after allowing the benefit of five completed years during which he has already officiated as Accountant was fixed at Rs. 260/- per month. As per Annexure P-1, the petitioner has officiated as Accountant w.e.f. 05.10.1964 to 07.11.1964 and from 20.06.1966 to 03.08.1971. The total period was five years two months and 18 days.
An audit objection was raised in the year 1981. It was incumbent upon the State to settle the same. It was not settled and the petitioner keep on drawing the pay of Rs. 260/- per month. He superannuated on 30.04.1991. The respondent No. 2 has sent a letter to respondent No. 3 to recover a sum of Rs. 20540/- on 30.04.1993. A second audit objection was raised in the year 1992 by respondent No. 4. Thereafter, a decision was taken to recover a sum of Rs. 20540/- from the petitioner. The audit objection ought to have been settled till the superannuation of the petitioner, i.e. 30.04.1991. It is not the case of the respondent-State that the petitioner has either mislead or misrepresented the facts at the time when he was granted benefit under FR 22-C and FR 27. The decision has been taken by the Head of the Department, as is evident from Annexure P-1.
According to FR 22-C, as was existent at the relevant time, where a Government servant holding a post in a substantive, temporary or officiating capacity was promoted or appointed in a substantive, temporary or officiating capacity 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 was to 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 such pay has accrued.
In Annexure P-1, there is specific reference to FR 22-C. The pay of the petitioner in the lower post of Clerk in the scale of Rs. 110-250 on 08.11.1973 has been fixed at Rs. 198/- per month and the same was notionally arrived at by allowing one increment and fixed at Rs. 204/- per month. The pay of the petitioner has been fixed under FR 22-C by taking into consideration the responsibility of greater importance discharged by him as Accountant w.e.f. 05.10.1964 to 07.11.1964 and 20.06.1966 to 03.08.1971.
The respondent No. 4, in its reply, has stated that the petitioner could not be granted five increments under FR 27 without obtaining sanction from the competent authority. F.R. 27 reads as under:
F.R. 27. Subject to any general or special orders that may be made by the President in this behalf, an authority may grant a premature increment to a Government 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.
The decision to grant five increments has been taken by the Head of the Department, i.e. Director of Health Services, Himachal Pradesh According to instruction No. 14 appended to F.R. 27, once fixation was done by the competent authority in exercise of the discretion vested in it under FR 27, the authority is not competent under the law to reduce initial pay originally fixed even when such pay was based on some data which subsequently termed to be incorrect.
Respondent No. 4 has raised the issue in the report for the period February 1979 to January 1981 about the fixation of the salary of the petitioner. This para was not settled. It was incumbent upon the respondent No. 2 to settle the audit para and to inform the respondent No. 4 that it was done in accordance with the rules, more particularly, when order, Annexure P-1, has been issued by him. He has failed to do so.
The petitioner has been granted one increment strictly as per FR 22-C and five increments as per FR 27. The pay fixed after giving five increments as per FR 27, in view of instruction No. 14 appended to FR 27, could not be reduced. The petitioner''s pay has been fixed at Rs. 260/- w.e.f. 09.11.1973. Thereafter, the petitioner has superannuated on 30.04.1991. He was permitted to draw the salary of Rs. 260/- w.e.f. 09.11.1973/- and the same was subsequently revised by the respondent-State till his superannuation. The audit para ought to have been settled before the superannuation of the petitioner.
The Court is of the view that the petitioner has rightly been granted benefit of one increment under FR 22-C and five increments under FR 27 for officiating period of five years two months and eighteen days. The order fixing the pay of the petitioner has been passed by the Director of Health Services. He is the Head of the Department. What is stated in reply by respondent No. 4, is that advance increments under FR 27 could not be granted without obtaining sanction of the competent authority. Who could be the competent authority, has not been explained in the reply. Even assuming that the sanction was to be obtained from the competent authority, it was for the Director of Health Services, Himachal Pradesh to do so. He could settle the matter by bringing to the notice of the respondent No. 4 that the pay of the petitioner has rightly been fixed under FR 22-C and five increments have also been rightly granted under FR 27. Even assuming hypothetically, if the sanction was to be obtained, in the peculiar facts and circumstances of the case, since the petitioner has been permitted to enjoy the benefits from 09.11.1973 till the date of his superannuation, the same will be deemed to have been accorded.
The representation made by the petitioner has also been wrongly rejected by the Director, Health Services, Himachal Pradesh vide Annexure P-8 on 10.02.2012. He has failed to take into consideration all the facts including the rules prevalent at the time when the petitioner was granted one increment under FR 22-C and five increments under FR 27. Case of the petitioner was also recommended to respondent No. 2 and despite that the respondent No. 1 has rejected the case of the petitioner. Accordingly, the petition is allowed. Annexure P-8, dated 10.02.2012, is quashed and set aside. The cost is quantified at Rs. 5,000/-. The pending application(s), if any, also stand (s) disposed of.