- (1.) THE petitioner Akhil Kumar Bhattacharya is a Graduate of Arts. He joined the service of this Court in the year 1927 as an assistant. At that time there was no time -scale of pay for the assistants working in this Court. There were fixed grades of pay (hereinafter referred to as the pre -1931 grades). On 27 -2 -1933 the U. P. Government issued G. O. No. 1752/VII -2665(i) -1931 introducing two grades of pay for the general section of the High Court office instead of the existing one common grade. These grades were termed as superior and subordinate. Similarly, for the translation department two grades known as senior and junior were introduced instead of the one common grade which existed at that time. The G. O. provided that the revised grades will take effect from 1 -4 -1933. With a view to fill up the posts in the superior grade, the then Chief Justice, the late Sir Shah, M. Sulaiman, decided to have an examination held. On 15 -11 -1933 the then Deputy Registrar of the High Court, Mr. S. E. J. Mills, sent the following letter to the petitioner : "Mr, A.K. Bhattacharya, Assistant Record Keeper, High Court, at Allahabad. You have been permitted to appear for an examination to be held on Saturday, 25 -11 -1933 in the High Court, for Superior service in the ministerial service of the High Court establishment. The starting pay of the post will be in the grade of Rs. 65 - 2 - 75 p. m. The selected candidate will be on six months probation in the first instance which may be terminated by either side with one months notice."
(2.) THE petitioner appeared at the examination and stood first in it. It is alleged by him that he was appointed substantively in the superior grade with effect from 1 -1 -1934, and his pay was fixed at Rs. 70/ - p.m. under the orders of the Chief Justice, There are some posts in the High Court which are known as posts of responsibility or trust requiring special qualifications and are called senior grade posts. The petitioners case is that from 1 -1 -1934 he has been working on one of those posts. In 1946, during the Budget Session, the Government gave an assurance to the members of the Legislative Council that a pay committee would be appointed to consider the revision of salaries of Government servants. That committee was actually appointed in 1947. It also made certain recommendations with regard to the revision of salaries of the High Court staff. Three scales of pay were introduced with regard to the High Court staff on the basis of the recommendations of the pay committee with effect from 1 -4 -1947. They are as follows : JUDGEMENT_180_TLALL0_1959.htm The petitioner did not elect the new scales of pay immediately they were introduced because according to him he believed that he could do so at any moment favourable to him. He continued in the old grade and earned two increments, the first one in July 1947 and the other in October 1947 and thereafter in August 1948 he filed a declaration accepting the new scale of pay. He was thereafter put in the upper grade i.e., in the grade of Rs. 120 - 300 with effect from 1 -8 -1948 and his salary was fixed at Rs. 184/ - p.m. It appears that the Government received some complaints with regard to the fixation of salaries of certain Government servants and, therefore, it passed a G. O. a copy of which was also sent to this Court whereupon the accounts department of this Court, with a view to comply with the directions given in the G. O., started looking into the cases of the employees of this Court to find out as to which of them had been fixed in a wrong grade and thus have been overpaid. Some difficulty was felt with regard to the petitioners case and it was not quite clear as to whether the petitioner had rightly been fixed in the scale of Rs. 120 - 300 on a starting salary of Rs. 184/ -p. m. Thus correspondence was started between the Registrar of this Court (hereinafter referred to as the Registrar), the Accountant General, U. P. (hereinafter referred to as the Accountant General) and the State Government in 1950. The stand taken by the Accountant General was that under Fundamental R. 23 a Government servant could defer the election of the new scales till his next promotion only when the old scales comprised of graded system of posts or till next increment where the old scales had time -scales of pay. The Accountant General suggested to the High Court to refix the initial pay of the petitioner as also some other assistants working in this Court who were allowed to elect the revised scales of pay otherwise than in accordance with the above rule. The High Court, though maintained that the matter was not free from difficulty, did not accept the interpretation placed by the Accountant General on Fundamental R. 23 and referred the matter to the State Government. The Accountant General referred the matter to the Comptroller and Auditor General as also to the State Government. The view of the Comptroller and Auditor General was in support of the petitioner and, therefore, the Registrar allowed the petitioner to run in the scale mentioned above. The State Government, however, did not accept the view of the Comptroller and Auditor General as correct, and sent a G. O. to this Court through the Accountant General asking for refixing of the salary and the grade of the petitioner as also some others according to what was contained in the G. O. The relevant portion of the G. O. (a copy of which has been filed and marked as annexure D) runs as follows : ". ... I am directed to say that after careful consideration of the question, the Governor has been pleased to decide as follows : (i) Grade promotions of Government servants entitled to the pre -1931 rates of pay after 1 -4 -1947 will not be restricted to those pre -1931 grades of pay for which a common revised 1947 scale has been laid down and it is open to a Government servant to come over to the revised 1947 scale of pay after reaching any such grade. (ii) Grade promotion after 1 -4 -1947 from one pre -1931 grade to another for which different revised 1947 scales have been prescribed are not permissible as that would amount to appointment to another post and not promotion to another grade. This follows from F. R. 23 and paragraph 3 of Audit Instructions thereunder which refers to grade promotions in cases in which a time -scale of pay has been substituted for a graded scale of pay. 2. I am now to request that fixation of pay of officials pending for want of a decision in the matter may be finalised."
(3.) ON receipt of that G. O. the Registrar accepted the Governments decision contained in it and held that inasmuch as the petitioner was on 1 -4 -47. holding a post in the pre -1931 scale of Rs. 140/ -, for which the revised scale of Rs. 75 - 5 - 100 - EB - 5 - 160 was prescribed, his election of the new scale with effect from 1 -10 -1947 after his promotion to the pre -1931 grade of Rs. 180/ - was not permissible and therefore refixed his salary at Rs. 145/ - p.m. in the scale of Rs. 75 - 5 - 100 - EB - 5 - 160 with effect from 1 -4 -47 and computed the amount of overpayment at Rs. 2,529/4/ -. Even though the Registrar did so he addressed a letter to the State Government on 27 -5 -1957 (annexure I to the petition) requesting the Government to allow the petitioner as a special case to elect the revised scale of pay on 1 -10 -1947 after his promotion to the pre -1931 grade of Rs. 180/ - and to sanction the fixation of his initial pay at Rs. 184/ -in the scale of Rs. 120 - 8 - 200 - EB - 10 - 300 with effect from that date. The State Government did not agree to the suggestion made by the Registrar and the latter was informed accordingly by the Additional Secretary to the Government of U. P. by letter (G. O.) No. 1215/VII -490/57 dated 5 -10 -1957, That letter was concluded in the following words : "I am accordingly to say that with the permission of the Court, recoveries may please be made from Sri Bhattacharya in such instalments as may be considered suitable." After receipt of this G. O. the Deputy Registrar of the High Court (hereinafter called the Deputy Registrar) sent the following letter to the Accountant General : "Sir, I am directed to send herewith a statement showing the amount of Rs. 2,529/4/ - recoverable from Sri A. K. Bhattacharya. His pay has been fixed in the revised 1947 scale in the light of G. O. No. G -1 -1084/X -208 -A/1947 dated 4 -6 -1954. The statement may kindly be verified and returned for necessary action. Enclosures : 1. Statement of recovery. 2. Statement showing fixation. 3. Service book V volumes." ;