Regulation of pay and increments of a Government servant whose promotion/appointment to a post is decided to be erroneous

Regulation of pay and increments of a Government servant whose promotion/appointment to a post is decided to be erroneous

No.F.1(3)-Est.III/59
Government of India
Ministry of Finance
(Department of Expenditure)

New Delhi-2, dated the 14th March, 1963.

OFFICE MEMORANDUM

Subject:-Regulation of pay and increments of a Government servant whose promotion/appointment to a post is decided to be erroneous.

The undersigned is directed to say that in pursuance of Fundamental Rule 31-A(an advance copy of which is  enclosed herewith), the President is pleased to decide that the following provisions shall govern the pay and increments of a Government servant whose promotion or appointment in a substantive or officiating capacity to a post is letter found to be erroneous on the basis of facts.

2.The orders or notification of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority this such a promotion or appointment has resulted from a factual error and the Government servant concerned should, immediately on such cancellation, he brought to the position which he would have held but for the incorrect  order of promotion or appointment.
In the case, however, of a Government servant who has been erroneouslyh promoted and appointed to a post in a substantive capacity the procedure prescribed in the Ministry of Home Affairs’ Office Memorandum No.32/5/54- Ests(A) dated the 24th November, 1954 (copy enclosed) for
deconfirmin the Government servant in that post should be followed and only thereadter the Government servant concerned should be brought down to the position which he would have held but for the erroneous promotion/appointment by the issue of orders as mentioned above. Service
rendered by the Government servant concerned in the post to which he was wrongly promoted/appointed as a result of the error should not be reckoned for the purpose of incre- ments or for any other purpose in that grade/post to which he would not normally be entitled but for the erroneous
promotion/appointment.

3.Any consequential promotions or appointments of other Government servants made on the basis of the incorrect promotion or appointment of a particular Government servant will also be regarded as erroneous and such cases also  will be regulated on the lines indicated in the preceding paragraph.

4.Except where the appointing authority is the President the question whether promotion/appointment of a  particular Government servant to a post was erroneous or not should be decided by an authority next higher than the appointing authority in accordance with the established principles governing promotions/appointments. Where the appointing authority is the President, the decision should rest with the President and should be final. The Ministry of Home Affairs should be consulted in respect of promotion/appointments in the Services administratively controlled by that Ministry. In other cases also, the Mnistry of Home Affairs may be consulted if any point is 5.The President is also pleased to direct that

cases of erroneous promotion/appointment in a substantive or officiating capacity should be viewed with serious concern and suitable disciplinary action should be taken against the officers and staff responsible for such erroneous promotion. The orders refixing the pay should be issued expressly under F.R.31-A and a copy thereof should be endorsed to the Ministry of Finance (Department of Expenditure).

6.In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders have been issued after consultation with the Comptroller and Auditor-General.

Sd/-
(RABI RAY)
Deputy Secretary to the Government of India.

Copy of Office Memorandum No.32/5-54-Ests.A(A) dated the 24th November, 1954, from the Ministry of Home Affairs to all Ministires etc.

Subject:-Erroneous confirmation of Government  servants – Propriety of cancelling –  Orders in connection with –

The undersigned is directed to say that the instances have come to the notice of the Ministry of Home Affairs of competent authorities having issued orders confirming temporary or officiating employees in permanent posts even though the employees concerned were not qualified in all respects for such confirmations under the relevant statutory rules, executive orders or administrative instructions. In  almost all these case, the confirmations so made had the effect of depriving or of postponing confirmations of other employees who were qualified in all respects for confirmation. The Ministry of Finance, etc., are requested to take serious notice of uch erroneous orders of confirmation.

2. The Ministry of Home Affairs have, in consultation with the Ministry of Law, examined the possibility and the propriety of concelling the erroneous orders of confirmation already made and it is decided as follows:-

(a) An order of confirmation which is clearly contrary to the relevant statutory rules may be cancelled by the competent authority straight away. Here the order of confirmation was abinito void as it was ultra vires of the relevant rules and cancellation of the order would be justificed on the ground that there was no valid subsisting order at all and the act of cancellation is a more formality.The effect of  cancellation would be to put the employee
concerned in a position of never having been  confirmed.

(b) An order of confirmation which is contrary to executive orders on administrative instrutions may be cancelled by the competent authority, if such erroneous order of confirmation has to the prejudicie of some identifiable person who would otherwise have been confirmed, if the orders had
been correctly applied.

Here the order of cancellation would be just and equitable as the confirmation of the employee concernex operates unfairly to the detriment of another employee who would have otherwise been confirmed. Such cancellation will not have the effect of doing any injustice to the employee
whose confirmation is cancelled, since he was, under the executive orders or administrative instructions in force, not entitled to confirmation.

It would, however, be in consonance with the principles of natural justice that a notice to show causee why the orders of confirmation should not be cancelled be given to the affected party in both the types of cases specified above.

3.The Ministry of Finance etc. are requested to draw  attention of all appointing authorities to the principles enunciated in the preceding paragraph in disposing of any complaints against erroneous orders of confirmation.

http://finmin.nic.in/the_ministry/dept_expenditure/notification/payfixation/14-03-1963.pdf