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Madhya Pradesh High Court · body

2002 DIGILAW 767 (MP)

Radhika Prasad Khare v. State of M. P.

2002-08-12

BHAWANI SINGH, S.L.JAIN

body2002
Judgment ( 1. ) BEING aggrieved by the order dated 27-3-2002 passed by the learned Single Judge in Writ Petition No. 6488/2001, appellant has filed this letters patent appeal under Clause 10 of the Letters Patent. ( 2. ) BRIEF resume of the facts required to be stated for disposal of the appeal is that the appellant was initially appointed in the service of respondent No. 2 as a daily rated employed to drive the vehicle and his service was regularised on the post of driver with effect from 1-1-76. In the year 1979 appellant was sent by the respondent No. 2 for training in fire fighting and on completion of his training, he was promoted as fire Superintendent in the year 1983. He was in the pay-scale of 1200-1800. The administrator of respondent No. 2 on 5-1-88 resolved that the appellant be granted pay-scale of Rs. 1540-2740 subject to the sanction by the State Government. This resolution was forwarded to the State Government for approval but no approval was received. ( 3. ) APPELLANT requested respondent No. 2 that in anticipation of approval by the state Government of new pay-scale as per resolution of the administrator, he may be given the enhanced pay-scale. He furnished an undertaking that in case the State Government does not approve the proposed pay-scale, the amount of excess payment may be recovered from him. ( 4. ) DESPITE the expiry of a very long period of many years, the approval of the State Government was not received and therefore, on 7-7-2001 respondent No. 2 resolved that in the matters of officers and servants who are drawing higher pay-scale as per the previous resolutions in anticipation of the approval of the State Government, State Government may be requested to give the approval within two months and if the approval is not received within two months, such employee may be given their old pay-scale. As per this resolution, State Government was requested to give the approval but the State Government did not pay any heed, therefore, vide communication No. 585881, dated 27-9-2001 annexed with the petition, it was ordered that from October, 2001 onwards the appellant will be given his salary in the pay-scale of Rs. 1200-1800. (This scale has now been substituted by pay- scale of Rs. 4000-6000 due to implementation of Vth Pay Commission ). ( 5. 1200-1800. (This scale has now been substituted by pay- scale of Rs. 4000-6000 due to implementation of Vth Pay Commission ). ( 5. ) IT is this communication No. 585881, dated 27-9-2001, which has been challenged by the appellant in the writ petition. The case of the appellant is that as per provisions of Section 58 of the Municipal Corporation Act, Corporation is the sole authority to decide all the matters concerning its employees and if the State Government does not approve any resolution of the Corporation, the Government suspend or reject the same. Where State Government does not suspend or reject the resolution, it is deemed that the resolution is approved. He also urged that respondent No. 1 be directed to take the decision on resolution No. 279/88, dated 5-1-88 passed by the Municipal Corporation, Katni. ( 6. ) RESPONDENT No. 2 combatted the claim of the appellant stating that the pay-scale of the officers and servants of the Corporation can be granted only on the basis of sanction given by the State Government. It is only subject to the rules made by the State Government in respect of the set up strength and other conditions of service of officers and servants of the Corporation, the Corporation can appoint such officers and servants as may be necessary for the efficient performance of the functioning of the Corporation. The pay-scale is prescribed by the State Government at the time of sanctioning the post. ( 7. ) THE learned Single Judge dismissed the petition holding that it was on the undertaking of the petitioner that revised pay-scale was given to him which the appellant could not have received till the approval of the State Government, therefore, the Municipal Corporation was justified in making recovery from the petitioner as the higher pay-scale was not approved by the State Government; and also holding that without the approval of the State Government higher pay-scale could not have been granted by the respondent No. 2. ( 8. ) WE have heard Shri Mukesh Agarwal, learned Counsel appearing for the appellant at the admission stage. His contention is three-fold :- (1) That the petitioner is getting enhanced salary from the year 1990 and after the lapse of twelve years, respondent No. 2 had no power to pass another resolution. ( 8. ) WE have heard Shri Mukesh Agarwal, learned Counsel appearing for the appellant at the admission stage. His contention is three-fold :- (1) That the petitioner is getting enhanced salary from the year 1990 and after the lapse of twelve years, respondent No. 2 had no power to pass another resolution. (2) If the Government was not prepared to approve the resolution of the Corporation, it was their duty either to suspend the resolution or quash the same. In absence of the suspension or quashing of the resolution, it shall be deemed to have been approved. (3) Learned Single Judge did not issue any direction to the respondent No. 1. ( 9. ) WE find no substance in the contentions raised by the appellant. So far as the first contention is concerned, merely because the appellant has been getting advantage of enhanced pay-scale for a period of twelve years, he cannot claim that the Corporation should commit the irregularity in perpetuity. Resolution No. S. A. /279/88, dated 5th January, 1988, passed by the Administrator, clearly reveals that only after the approval of the State Government, the appellant shall get the advantage of revised pay-scale. On the face of plain and unambiguous language used in the Resolution No. 279 the appellant could not have been given revised pay-scale without the approval of the State Government. Even on the basis of undertaking given by the appellant, the revised pay-scale could not have been paid without the approval of the State Government in view of the plain language of the resolution. The appellant cannot take advantage of a wrong. ( 10. ) WHEN despite a long lapse of twelve years or so, the resolution of Administrator was not approved by the State Government, the respondent No. 2 was justified in resolving that if within two months, the approval of the Government is not received, those persons who are getting revised pay without the approval of the State Government, will be restored to their original position. Thereafter, respondent No. 2 further requested the State Government to approve the proposal of revised pay, but the Government did not pay any heed to it. Therefore, respondent No. 2 was justified in restoring the pay which the appellant would have got but for the resolution dated 5-1-88. ( 11. Thereafter, respondent No. 2 further requested the State Government to approve the proposal of revised pay, but the Government did not pay any heed to it. Therefore, respondent No. 2 was justified in restoring the pay which the appellant would have got but for the resolution dated 5-1-88. ( 11. ) IN fact, the appellant was not entitled to revised pay without the approval of the Government only on the basis of his undertaking, therefore, the payment of revised pay-scale was certainly illegal. If the respondent No. 2 refused to perpetuate the illegality, the appellant cannot have any legitimate grievance when the revised pay-scale was given on the undertaking of the appellant, that in case, the State Government does not approve the revised pay-scale, the excess payment may be recovered from him. The appellant is now estopped from questioning the same. ( 12. ) WE find no substance in the second contention that as the State Government did not suspend or quash the resolution, it shall be deemed to have been approved. It is not necessary for the State Government to approve every proposal of the Corporation. In the absence of express approval, the proposal of the Corporation cannot be said to have been approved. It is true that the State Government has power to suspend or quash any resolution of the Corporation, but it does not mean that if the resolution is not suspended or quashed, it shall be deemed to have been approved. If the Corporation feels that without the express approval of the State Government it will not be proper to grant enhanced pay-scale, no law compels the Corporation to give the revised pay-scale. ( 13. ) REGARDING the last contention of Shri Agrawal, learned Counsel for the appellant, it was not the obligation of the State Government to accept the proposal. If the State Government is not willing to accept the proposal, the High Court, in its writ jurisdiction, cannot compel the State Government to accept the resolution of the Corporation. Therefore, learned Single Judge was justified in not issuing any direction to the State Government. ( 14. ) FOR the foregoing reasons, we are of the view that the findings of the learned Single Judge are unassailable. We do not find any merit in this appeal and the same is accordingly, dismissed in limine.