BABULAL JAIN versus STA TE OF M.P. AND ORS.

Citation: [2007] 5 S.C.R. 514 · Decided: 24-04-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

A 
BABULAL JAIN 
;( 
v. 
STA TE OF M.P. AND ORS. 
APRIL 24, 2007 
B 
[S.B. SINHA AND MARKANDEY KATJU, JJ.] 
Service Law: 
c 
Deputation to a higher post-Fixation of pay-Instructions of State 
Government that transfer from one Department to another would be treated 
as posting and not appointment-Pay of employee fixed as per FR 22(D)-
Later pay refixed and excess payment ordered to be recovered-Held, the 
substantive post held by employee did not provide for channel of promotion 
to the post he was posted on Deputation-For all intent and purpose he was 
D deputed to that post-As such, he could not have been placed on a higher 
scale of pay-FR 22(D) is not applicable to a case of deputation-However, 
in exercise of jurisdiction under Article 142 of the Constitution, Department 
r 
directed to refund the amount recovered from the employee-Fundamental 
Rules-FR 22(D)-Constitution of India, 1950-Article 142. 
E 
Appellant, an Accountant in the Collectorate, was posted on deputation 
to the post of Election Supervisor. On 9.2.1999, State of Madhya Pradesh 
issued an Office Memorandum to the effect that transfer from one Department 
of the Government to the other Department would be treated as posting and 
not appointment, and on being appointed on higher post, pay would not be fixed 
F 
under FR 22(D) or 22(A) of M.P. Civil Services (CCA) Rules, but on the pay 
"-
being drawn by him on the lower post. On 13.12.2000 the Collector added the 
• 
word "promotion" in the offer of appointment of the appellant by corrigendum. 
He was relieved of his duties as Election Supervisor with effect from 
31.12.2001, the date on which he attained the age of superannuation. 
Meanwhile, in view of the circular dated 9.2.1999, his pay was reflxed in the 
G pay scale of his substantive post by order dated 26.12.2001, and the excess 
payment made to him was directed to be recovered. The appellant challenged 
/.-
the said order and, ultimately, the High Court dismissed his writ petition 
holding that since the employee had been given the higher scale of Election 
Supervisor on which !JOSt he was not promoted as per law, there was no 
H 
514 
\ 
BABULALJAINv. STATEOFM.P. 
515 
illegality in the order of refixation of his pay and there was no question of A 
quashing the recovery. 
In the .l!..Ppeal filed by the employee, it was contended that t,hc Office 
Memorandum dated 9.2.1999 was ultra vires Fundamental Rule 22(0) and the 
M.P. Civil Services (CCA) Rules; and that, in any case, recovery could not 
have been made from his salary. 
B 
Allowing the appeal in part, the Court 
HELD: 1. The substantive post held by the appellant did not provide for 
a channel of promotion to the post of Election Supervisor and, as such, the 
Collector of the District could not have, in law, appointed him on the post of C 
Election Supervisor and later issue a corrigendum that he had been promoted 
thereto. Thus, for all intent and purport, he was only deputed to that post. 
Having been placed on deputation to a post which carries higher 
responsibilities, some allowance could have been granted in his favour, but 
he could not have been placed on a higher scale of pay. It is, therefore, not a D 
case that the Finance Department of the State of Madhya Pradesh could not 
have issued a clarification in this behalf as ultimately the financial burden 
would be on the State. Fundamental Rules 22(D) of the Rules refers to regular 
promotion to a post and is not applicable to a case of deputation. 
[Para 10, 11, 12 and 13] [519-B-G) 
2. However, in a case of this nature, no recovery should be directed to 
be made. Appellant has discharged higher responsibilities. It is not a case 
where he obtained higher salary on committing any fraud or 
misrepresentation. The mistake, if any, took place on a misconception of law. 
E 
He has since retired. A sum of Rs. 22,000/- has been recovered from him. 
Such recovery has been effected without issuing any show cause notice. His F 
case on merit in this behalf was not considered by the Government and even 
by the Tribunal. The respondents shall refund the said sum of Rs. 22,000/- to 
the appellant and also direct his retirement benefit to be calculated as if he 
had reached the age of superannuation only as an Accountant on the re-fixed 
pay and not on the scale of pay of Election Supervisor. This direction is issued G 
in exercise of jurisdiction under Article 142 of the Constitution of India. 
[Paras 14 and 17) (519-H; 520-A-B; C-D) 

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