N C CHOUDHURY Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) By this application made under Article 226 of the Constitution of India, the petitioner, an Assistant Conservator of Forests, Meghalaya, having failed to convince his Administrative Department and also the Finance (Pay Revision) Department that the scale of pay of the petitioner fixed under the revised pay scale needs to be corrected in accordance with the provisions of the relevant Rules, has approached this Court for necessary reliefs.

(2.) The case of the petitioner, if it is stated briefly, runs as follows : The petitioner was appointed as a Forest Ranger in the scale of pay of Rs. 225-15- 285-EB-15-360-EB-20-600/- to be revised at Rs. 400-20-500-EB-25-750-EB-30- 900/- with effect from 27.02.1975 and henceforth, as decided by the State Govt, his annual increment was to be drawn from 01.02.76 and on first February every year thereafter. The scale of pay of the post was revised to Rs. 575-25-700-EB-30-850-EB- 35-1200/- w.e.f. 01.01.79 and on option being exercised by the petitioner, his pay was fixed at Rs. 650/- on 01.1.79 to be raised to Rs. 675/- on and from 01.02.79, i.e. his usual date of increment. The scale of pay for the post of Forest Ranger alongwith other posts in the State of Meghalaya was further revised to Rs. 1750-55-2025-EB-65-2480-75-3230/- with the issuance of notification of the Meghalaya Services (Revision of Pay) Rules, 1988, vide No. F(PR)-35/88/28, dated 30th Nov. 1988 (Annexure 1 to the writ petition). According to Rule 1(2) of the said Rules, the provision of Meghalaya Services (Revision of Pay) Rules, 1988, came into force on 1st day of January, 1987. Rule 5 of the said Rules provides that a Government servant shall draw pay in the revised scale applicable to the post, which he has been holding on the 1st day of January, 1987, provided that the Government Servant may elect to continue to draw his pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale. Under Rule 7(1) of the said Rules, the option under the proviso to Rule 5 shall be exercised, in writing, in the form appended to the Second Schedule thereof and submitted, within sixty days from the date of publication of the said Rules to the authority mentioned in Sub-Rule (2) of Rule 7 and that the option, once exercised, shall be, according to Rule 7, final. Where a senior Government servant promoted to a higher post before the 1st day of January, 1987, draws less pay in the revised scale than his junior, who is promoted to higher post on or after the 1st day of January, 1987, the pay of the senior Government servant should be stepped up to an amount equal to the pay as fixed for his junior in that higher post in accordance with Rule 7 of the said Rules. The petitioner exercised, within the period of sixty days of the issue of the said notification, his option for the revised scale of pay and, in terms of proviso to Rule 5, elected to continue to receive the existing scale until the date of his next increment, i.e., on 01.02.87 (Annexure 2 to the writ petition). However, the Administration Department of the petitioner drew up petitioner' initial pay statement and fixed his pay at Rs. 2025/- in the scale of Rs. 1750-55-2025-EB-65- 2480-75-3230/- w.e.f. 01.01.1987 fixing his next increment w.e.f. 01.01.88 totally overlooking the fact that the petitioner had opted to receive the revised pay on and from 01.02.1987. The statement, so fixing the revised pay scale, was sent to the Finance Department and the Finance (Pay Revision) Department mechanically certified the fixation so made by the Administrative Department (Annexure 3 to the writ petition) without, however, noticing the mistake committed by the Department concerned. The petitioner inadvertently drew his arrear on the revised scale of pay erroneously fixed by the Department concerned and it was much later that the petitioner came to learnt from his junior colleagues that they had been drawing pay at a stage higher than what the petitioner was drawing. On inquiry and scrutiny, the petitioner found that the mistake had occurred due to fixation of his pay revision with effect from 01.01.87, which was contrary to what had been elected by him, and, in consequence thereof, this mistake was perpetuated in fixing petitioner's further increments. On representations made by the petitioner, the Conservator of Forests (HQ), vide his letter No.MPS.25/2/11, dated 19.3.94 (Annexure 4 to the writ petition), addressed to the Under Secretary, Govt. of Meghalayn. Finance (PR) Department, pointed out that though the petitioner had exercised his option for the revised scale w.e.f. 01.02.87, his pay was erroneously fixed w.e.f. 01.01.87, whereas three of petitioner's juniors, who had also joined on the same date as that of the petitioner on 27.02.75, were receiving their initial pay at Rs.2135/- on 01.02.87 as against petitioner's initial pay of Rs. 2025/- w.e.f. 01.08.87 and hence, petitioner's pay needs to be refixed correctly. However, on extraneous considerations, the Finance Department refused to correctly fix the revised pay scale in respect of the petitioner. Realising the mistake, so committed, the Administrative Department of the petitioner had also suggested rectification of the fixation of pay of the petitioner by taking resort to F.R. 29, but the Finance Department turned down this suggestion too. Though the petitioner made further representations in this regard to the Govt. Departments concerned, nothing fruitful has been done. The petitioner has, therefore, approached this Court.

(3.) The respondents No.1 to 4 have contested this case by filing jointly their affidavit in opposition, their case being, briefly stated, thus : Under Rule 7 of the said Rules, mere exercise of option within the specified period of 60 days is not adequate compliance with the provisions of the said Rules inasmuch as this Rule provides that it is the responsibility of Government servant concerned to ensure that the option exercised by him reaches the prescribed authority within the fixed time limit and he shall obtain an acknowledgement to that effect. In the case at hand, Finance (PR) Department, on examining the fixation of revised pay prepared by head of office of the petitioner, found that the service book and the initial pay statement of 1987 had been submitted by the head of the office of the petitioner without any option paper. In such a situation, the Finance (PR) Department had no other alternative but to act in accordance with Rule 7(4) and fix the revised pay scale of the petitioner with effect from 01.01.87 inasmuch as Rule 7(4) of the said Rules provides that if intimation regarding option is not received within the prescribed time limit, the Government servant shall be deemed to have elected to be governed by the revised scale of pay w.e.f. 01.01.87. The Finance (PR) Department, thus, acted in accordance with the relevant Rules in fixing of the revision scale of pay of the petitioner. This apart, the relevant acquittance role of the petitioner also indicates that the arrear pay was paid to the petitioner for the period from 01.01.87 and was duly received by the petitioner on 03.03.89. This further indicates that the petitioner had actually not exercised any option as asserted by him. On receiving the letter, dated 16.03.94 (Annexure 4 to the writ petition) aforementioned from the Head of office of the petitioner, the Finance (PR) Department examined the matter once again and found that the option had not been exercised by the petitioner in the prescribed form inasmuch as it did not contain acknowledgement portion of the form. The petitioner, thus, neither exercised his option within the stipulated period nor did he submit his option in accordance with the prescribed form. The Finance (PR) Department, therefore, correctly rejected the representation of the petitioner. The fact that the petitioner's junior, at one stage, started receiving more pay than the petitioner is the outcome of the petitioner's own omission to act in accordance with the provisions of the said Rules. The Finance (PR) Department has received a large number of claims of the same nature as has been made by the petitioner and if the Rules are relaxed in the case of the petitioner, the same would open a flood gate of such claims by the Government servants. The Finance (PR) Department, therefore, justifiably turned down the request of the petitioner. Since the difference in the pay scale of the petitioner and his colleagues occurred due to operation of Meghalaya Revision of Pay (ROP) Rules, 1988, question of taking resort to the provisions of FR 29 does not arise at all.