V.N. Khare, J. - (1.) Farid Sattar, respondent herein, joined as an Auditor in the Office of the Accountant General (A and E), West Bengal on 16-2-1982. Consequent on the bifurcation of Audit and Accounts, the respondent was transferred to the Office of the Accountant General (A and E), West Bengal on 1-11-1985. The respondent opted for the accounts wing and as such he was retained there and subsequently promoted to the post of Senior Accountant on 4-12-1987. In December, 1990 the respondent while officiating on the post of Senior Accountant applied for mutual transfer with one Shri Paresh Ghosh, Senior Accountant, working in the Office of the Senior Deputy Accountant General (A and E), Sikkim. As mutual transfer was not permissible in the cadre of Senior Accountant, the respondent was advised to apply for unilateral transfer after seeking reversion to the lower post of accountant as a direct recruit. In pursuance of the advice tendered, the respondent applied for unilateral transfer in the cadre of accountant foregoing the status of a Senior Accountant, in the Office of the Senior Deputy Accountant General (A and E), Sikkim in July, 1992 and he was permitted to take such transfer on certain terms and conditions. The pay scale of Senior Accountant at the relevant time was Rs. 1400-2600, whereas, the pay scale of Accountant was Rs. 1200-2040. The respondent having accepted the terms and conditions of unilateral transfer was posted as an accountant in the pay scale of Rs. 1200-2040. However, his pay was erroneously fixed at Rs. 1560/-, which he was drawing in the pay scale of Rs. 1400-2600 prior to his reversion to the lower post. Subsequently, it was found that the fixation of pay of the respondent at the stage of Rs. 1560/- was due to some mistake and, therefore, by a Memorandum dated 8-11-1994 the pay of the respondent was directed to be re-fixed and a further direction for recovery of excess payment made to the respondent was also issued. It is at this stage the respondent filed Original Application before the Central Administrative Tribunal, Calcutta, challenging the Memorandum dated 8-11-1994 contending that the pay which he was drawing as Senior Accountant viz., Rs. 1560/- in the pay scale of Rs. 1400-2600 has to be protected even if he was reverted to the lower post of Accountant on transfer and re-fixation of his pay at a lower stage, and recovery of the alleged excess payment of salary is unwarranted. The appellants herein disputed the contentions of the respondent, inter alia, on the ground that the respondent was bound by the terms and conditions of the unilateral transfer and as on acceptance of such terms and conditions, the respondent was required to tender technical resignation from the post of Senior Accountant and had to join as a direct recruit on the lower post of Accountant ranking junior most in the cadre of Accountant. It was also contended that on such a transfer the pay of the transferee is not required to be protected and his pay was to be fixed as a direct recruit on the lower post in which post he was reverted. The tribunal took the view that since unilateral transfer is not contemplated by Fundamental Rules (hereinafter referred to as 'F.R') and as such, in a case like the present one the respondent has to be treated as having gone on transfer on request and, therefore, his case was to be governed by F.R. 22(I) (a)(3). In view of the provisions of above Rules, the tribunal quashed the impugned order and allowed the application of the respondent. It is against the said judgment and order of the tribunal the appellants are in appeal before us.
(2.) Learned counsel for the appellants urged that the tribunal fell in error in applying F.R. 22(I)(a)(3) in the present case. The argument is that the pay of the respondent was required to be fixed in accordance with the terms and conditions which were accepted by the respondent. Learned counsel then referred to the terms and conditions of the unilateral transfer of the respondent. Learned counsel for the respondent urged that unilateral transfer not being contemplated in F.R., the transfer of the respondent necessarily has to be governed by F.R. and in the present case it is F.R. 22(I)(a)(3) which is applicable, and on an application of the said rule, the judgment and order of the tribunal has to be affirmed.
(3.) In order to appreciate the arguments of the learned counsel for the parties, it is necessary to refer F.R. 22(I)(a)(2)(3) and the relevant portions are extracted below: "F.R. 22 (I) (a) (2):When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in response of the old post held by him on regular basis, or if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis: FR 22 (I) (a) (3):When appointment to the new post is made on his own request under sub-rule (a) of Rule 15 of the said rules and the maximum pay in the time-scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay." ;