MEHBOOB RAHMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was initially non-IPS cadre. He was promoted to IPS cadre with effect from March 23, 2005. The subject dispute relates to the period when the petitioner was working as Vice-Principal in Central Detective Training School, Calcutta on deputation Pertinent to mention, the concerned school was under the Bureau of Police Research and Development, Ministry of Home Mairs, Union of India. As per the service conditions so published in notification dated June 28, 2001 the post was to be filled up by transfer on deputation from amongst the in house candidates being IPS officers working in the senior scale or State Police Service Officers holding post in the scale equivalent to senior scale of IPS or included in the select list for the promotion to IPS or different categories mentioned in the notification working in Central Police cadre. The petitioner was in State Police Service as observed earlier. He was initially a non-IPS cadre. He opted for the post of Vice-Principal in the academy and was selected as such. He joined the post on deputation on July 1, 2003 on a term of three years. At that time, he was working as Deputy Superintendent of Police, West Bengal, enjoying a basic pay of rupees twelve thousand seven hundred and fifty in the scale of Rs. 1200 - 375 - 18000. He was engaged as Vice-Principal and fitted in the scale of Rs. 10000 - 325 - 15200 and basic pay was fixed at Rs. 12,925/-. From July 2003 to June 2005 he continued to enjoy the said scale. On March 23, 2005 he was promoted to IPS rank and became entitled to the scale of Rs. 10000 - 325 - 15200, the scale which he enjoyed earlier. The dispute arose with regard to fixation of his pay after his promotion as IPS. The authority observed that his pay should be fixed at Rs. 12750/- retrospectively with effect from July 1, 2003 in the scale of Rs. 12000 - 375 - 18000. The authority asked him to refund a sum of Rs. 73,743/- stated to have been overdrawn by him till that date. The authority granted instalment of rupees five thousand for such reduction. The authority subsequently corrected the amount and asked for refund of rupees sixty-five thousand five hundred thirty which the petitioner disputed. Repeated representations were made. Ultimately, the petitioner approached the Tribunal. The Tribunal dismissed his application vide judgment and order dated January 28, 2008 which gave rise to the present application before us.

(2.) On perusal of the judgment and order impugned herein, we find that the petitioner contended before the Tribunal that his pay was correctly fixed at rupees twelve thousand nine hundred and twenty-five as he was persuaded to accept the lower scale as by that time he was already enjoying the scale of Rs. 12000-325-18000. On the persuasion of the authority he agreed to accept the lower scale being Rs. 10000 - 325 - 15300 on the assurance of pay protection. The authority, accordingly, fixed his pay at rupees twelve thousand nine hundred and twenty five. Hence, the subsequent recall of the earlier pay fixation was invalid. The petitioner also contended that for last two years he enjoyed the said benefit without having any audit objection. Moreover an audit account considered the issue and contemporaneously accepted such fitment as would appear from page 25 of the paper book. Pertinent to note, the Audit Accounts Officer, Government of India vide memo dated May 26, 2005 observed that the fixation of pay was correctly done as per the logic so advanced by the concerned officer appearing in the said report. The Tribunal rejected his contentions on the ground that the earlier pay fixation did not have the approval of the competent authority. The Tribunal also observed that the DA pattern in the State Service was not the same as the Central Government. Moreover, as there was delay in fixing of the pay, provisional pay was offered to him which was fixed at a lower scale than what he was enjoying in his original post. However, such fixation was a temporary fixation and should not be of any consequence. On the issue of persuasion to opt a lower pay scale, the Tribunal observed that deputationist could not opt for a particular pay scale in view of training allowance which he was otherwise entitled to as a service condition. The Tribunal lastly rejected the contention of the petitioner that recovery was not valid in view of the decision of the Apex Court in the case of Shyam Babu Verma and Others vs. Union of India and Others, 1994 2 SCC 521.

(3.) Mr. Subhendu Mukherjee, learned counsel being assisted by Mr. Sanat Kumar Chowdhury, learned advocate appearing for the petitioner reiterated what he had contended before the Tribunal. Learned Counsel, in addition, contended that the Tribunal did not consider the audit observation appearing at page 25 and erroneously termed the earlier fixation as a provisional pay. He contended that according to the Service Rules pay scale was fixed and such benefit once extended could not be recalled after a lapse of two years. In any event such belated recovery was not permissible in view of the decision in the case of Shyam Babu Verma . He also contended that the very fact that he was persuaded to accept the lower pay scale was apparent from the records. The petitioner agreed to the same in view of his fixation at a higher rate. Such fixation could not be recalled at a belated stage that too, retrospectively.