Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 754 (MP)

PREMA SONKAR v. STATE OF M. P.

2007-07-18

R.K.GUPTA

body2007
ORDER R.K. Gupta, J. In Writ Petition Nos. 12799/2006(S); 13143/2006(S) and 13145/2006 (S), the applications for amendment, which are I.A. Nos. 6749/06, 6752/06 and 6753/06 respectively were filed but at the time of hearing, counsels for the petitioners did not press the amendment, therefore, no orders have been passed to allow the aforesaid applications. Since common questions of facts and law are involved in all these petitions, therefore, these petitions are heard analogously and decided by this common order. In all the aforesaid petitions, the petitioners have challenged the order issued by the State Government on 25-3-2006. The order passed by the respondents on 22-7-2006 has also been challenged whereby the respondents have directed to recover a sum of Rs. 2000/- per month from the salary of the petitioners. The order dated 25-3-2006 directs that in the order dated 28-8-2000 certain amendments are directed by which it is directed that in the light of various judgments passed by the State Administrative Tribunal and also keeping in view the memorandum of the Finance Department dated 6th May, 2005 the salary of the employees belonging to the Executive cadre those who have been declared to be the member of the police force, by counting Rs. 50/-, 60/- and Rs. 70/- ad-hoc increase on the basis of the recommendations of the Pay Commission as on 31st March, 1981 their salary be fixed in the corresponding pay scale and not in any other higher pay scale than to the corresponding pay scale. It also directs that the persons those who are appointed after 1-4-1981 are not entitled to be given the said benefits. The facts leading to the present petitions are that all the petitioners were initially the Ministerial Staff. Subsequently, the State Government issued a memorandum on 5th November, 1967, whereby a new police rank (Ministerial) in the State Police Force w.e.f. 1-3-1967 was created and Ministerial Staff of the Police department was to be given the rank of police force. There was a specific condition in the said order that the Ministerial employees of the Police department after their enrolment under the Police Act would continue to draw emoluments in their existing pay scale in which they were working prior to 1-4-1981 or as may be revised from time to time. The State Government issued a circular on 28-6-1979 whereby the Constable (Ministerial) was given the ad-hoc increase of Rs. The State Government issued a circular on 28-6-1979 whereby the Constable (Ministerial) was given the ad-hoc increase of Rs. 50/-, Head Constable Rs. 60 and Rs. 70 for Assistant Sub-Inspector, Sub-Inspector/Platoon Commander/Subedar, Inspector and Company Commander. The said document has also been filed on record by the respondents. There is no dispute that all the petitioners had been entitled to get the aforesaid amount as prescribed in the said order. The Chaudhary Pay Commission came into force w.e.f. 1-4-1981. The Pay Commission prescribed the pay scale of Rs. 380-495 (pre-revised Rs. 125-150) for the post of Constable (M), Rs. 400-545 (pre-revised Rs. 135-190) for the post of Head Constable (M), Rs. 515-800 (pre-revised Rs. 195-330) for the post of A.S.I. (M), Rs. 575-880 (pre-revised Rs. 220-375) for the post of S.I. (M) and Rs. 635-950 (pre-revised Rs. 350-600) for the post of Subedar (M). The State Government in exercise of its powers vested under Article 309 of the Constitution of India promulgated M.P. Revision of Pay Rules, 1983. These rules were made effective from the first day of April, 1981. This was the Chaudhary Pay Commission and the pay scale was prescribed for the categories of the petitioners as referred to in paragraph 5 above. Under Rule 7 of the M.P. Revision of Pay Rules, 1983 the fixation of initial pay in the revised scale was also provided. Under Rule 7(1) the initial pay of a government servant who elects or is deemed to have elected the revised scale under Rule 6 was directed to be fixed as under: 7. Fixation of initial pay in the revised scale - (1) The initial pay of a Government servant who elects or is deemed to have elected the revised scale under Rule 6 shall, except where the State Government by special order directs otherwise, be fixed separately-- (a) in respect of his substantive post on which he holds a lien or would have held a lien if it had not been suspended, and (b) in respect of the officiating post, held by him with reference to the total emoluments arrived at by adding to the basic pay in the existing scale, in the following manner: (i) Basic pay (ii) Stagnation allowance, if any (iii) Dearness allowance/Additional Dearness allowance ad hoc Additional Dearness allowance sanctioned up to 1st September, 1981 vide Finance Department Memo No. F.B.8/1/81/R-II/IV, dated 31st October, 1981. (iv) Ad hoc increase sanctioned to certain categories of Government servants in Police, Home Guards, Jail and Excise Department, except the ad hoc increase allowed to Ministerial Staff of Police Department. (v) All instalments of interim relief, including ad hoc increase sanctioned to certain categories of Government servants in the Engineering Department. (vi) Special Pay, only where it has been merged in the revised Pay Scale (vide) Annexure III). Explanation -- Where increment in the existing scale is payable on 1st April, 1981, it will be treated as part of basic pay. Thereafter, some confusion arose with regard to the pay fixation of the petitioners belonging to different categories under the aforesaid Rules. The State Government issued a circular dated 28th August, 2000. It was directed by the State Government that while fixing the basic pay in the corresponding revised pay scale w.e.f. 1-4-1981, Rs. 50/-, Rs. 60/- and Rs. 70/- as an ad hoc increase be also counted for the purpose of basic pay of the incumbents in the corresponding revised pay scale. The corresponding revised pay scale on 1-4-1981 has already been shown in paragraph 5 of this judgment. It appears that while fixing the basic pay in the corresponding revised pay scale w.e.f. 1-4-1981, the ad hoc increase was added to fix the basic pay in the revised pay scale but rather than providing the corresponding pay scale a further higher pay scale was provided to the employees. The chart, which is reproduced herein below shows the pre-revised pay scale and the corresponding pay scale of the categories of the petitioners and the pay scale which was provided to the petitioners wrongly in the Chaudhary Pay Commission i.e. from 1-4-1981: Patient fully conscious. Gait normal. Pupil normal. Speech normal. Smell of alcohol not coming from mouth. Note: The pay scale which is given to the petitioners, as shown in Column No. 5 above was applicable for the category of Executives but not for the Ministerial. On the basis of the aforesaid chart, it is clear that these sets of employees were entitled to the corresponding pay scale as provided under the M.P. Revision of Pay Rules, 1990 and not a further higher pay scale after adding ad hoc increase. On the basis of the aforesaid chart, it is clear that these sets of employees were entitled to the corresponding pay scale as provided under the M.P. Revision of Pay Rules, 1990 and not a further higher pay scale after adding ad hoc increase. It is also not disputed that while fixing the pay of the petitioners in the M.P. Revision of Pay Rules, 1990 in the corresponding pay scale as aforesaid, ad hoc increase was counted for the purpose of fixing the basic pay in the revised pay scale. On the basis of the same, it is apparent that the ministerial rank even though were given the Police rank yet in terms to the Memorandum dated 5th November, 1967, the employees as such, after their enrolment under the Police Act were to continue to draw the emoluments in their existing pay scale in which they were prior to 1-4-1981 or as may be revised from time to time. On the basis of the same, it is, thus, clear that even after their enrolment under the Police Act, such Ministerial employees were entitled to draw the emoluments in their existing pay scale in which they were prior to 1-4-1981 or corresponding revised pay scale from time to time. On this basis, all the petitioners were only entitled to the benefit of the corresponding revision of their existing pay scale. The higher pay scale than the corresponding revised pay scale was given to the categories of the petitioners and other allied categories on the basis of the fact that they were treated to be in the Executive cadre and the pay scale for the Executive cadre was a higher one though the Memorandum issued by the State Government on 5th November, 1967 only provided that the employees in spite of their enrolment in the Police Act they will continue to draw their emoluments in their existing pay scale in which they were prior to 1-4-1981 and not the pay scale which is provided to the Executive cadre. The case before the Tribunal was filed by one Krishna Gopal Duraphe wherein a grievance was made by him that ad hoc increase of pay of Rs. 70/- was not counted at the time of fixing the pay in the corresponding pay scale. The said case was registered as O.A. No. 45/1998 and it was finally decided on 1-1-2000. The case before the Tribunal was filed by one Krishna Gopal Duraphe wherein a grievance was made by him that ad hoc increase of pay of Rs. 70/- was not counted at the time of fixing the pay in the corresponding pay scale. The said case was registered as O.A. No. 45/1998 and it was finally decided on 1-1-2000. The Tribunal, in para-8 of its judgment, passed the following order: Petition is accordingly allowed and the respondents are directed to re-fix the pay of the applicant in the revised pay scale, as per Table 31 of M.P. Revision of Pay Rules, 1983 by including Rs. 70/- of ad hoc increase for calculation of initial pay as per Rule 7(b) of the said rule and accordingly respondents are further directed to revise the pension and pay the arrears with simple interest @ 12% per annum from the date of filing of this petition i.e. 20-1-1998 till the date of actual payment. Thereafter, the State Government preferred a review application, which was registered as Miscellaneous Application No. 218/2001. The said review application was submitted by the State Government making a grievance that the effect of the judgment passed by the Tribunal is to grant a higher pay scale to the petitioners and not the corresponding pay scale to which petitioner was entitled to. The Tribunal in its review application considered the said submission in detail and final order was passed by the Tribunal on 17th November, 2001. In paragraphs 6, 7 and 8 of its judgment, the Tribunal held that while giving the direction in the Original Application No. 45/1998 it was never intended by the Tribunal to provide a higher pay scale than the corresponding pay scale and that too with retrospective effect from 1-4-1981. In paragraphs 6, 7 and 8 of its judgment, the Tribunal held that while giving the direction in the Original Application No. 45/1998 it was never intended by the Tribunal to provide a higher pay scale than the corresponding pay scale and that too with retrospective effect from 1-4-1981. The Tribunal clarified its order that the benefit of ad hoc increase has to be given while fixing the pay of the incumbent in the corresponding revision of pay scale of the existing scale of pay w.e.f. 1-4-1981 and then the basic pay in the corresponding revised pay scale be given, The relevant portion which was clarified by the Tribunal is as under: .............Apart from this there is also sufficient cause for recalling and review of the order looking to the fact that there is a large financial implication which was never intended by the Tribunal to be granted and which has been secured by the subsequent petitioners. The Tribunal never intended nor ordered that higher pay scale should be given and that too with retrospective effect from 1-4-1981. The Tribunal obviously only intended that the ad hoc increase of Rs. 70/- applicable for Inspectors should be added while fixing the pay in the revised scale of pay with effect from 1-4-1981 for the non-applicant. The intention was never to grant any higher scale of pay nor any such direction was given in the original order under review. For persons of ministerial cadres holding lower rank the ad-hoc increase is lower, i.e. of Rs. 50/- or Rs. 60/- which they were entitled for addition to the pay while fixing their pay in the revised scale of pay. The intention quite clearly was never that such lower cadres would also be given the higher scale of pay. A series of cases before the Tribunal were filed claiming the benefit of the order passed in Miscellaneous Application No. 218/2001. Since the State Administrative Tribunal was abolished, therefore, all those cases were transferred to this Court and this Court by its judgment dated 19-2-2004 directed that since the mistake which occurred in O.A. No. 45/1998 has been rectified by the Tribunal in Misc. Application No. 218/2001, therefore, the same shall be applicable by extending the benefit of the said judgment to the petitioners. Application No. 218/2001, therefore, the same shall be applicable by extending the benefit of the said judgment to the petitioners. The contempt applications were also filed before this Court and direction was given by this Court to comply its earlier order, as aforesaid. In one case i.e. in Contempt Petition No. 4323/2005 decided on 10-2-2006 the Court considered the grievance of the petitioner that the benefit of Rs. 70/- has not been given which is admissible as per the order dated 28-8-2000. This Court in the said judgment directed that the benefit of Rs. 70/- while fixing the basic pay in the revised pay scale should also be extended to the petitioners within a period of three months. Along with the order passed by the State Government dated 28-8-2000, a schedule was also appended. This was a ready-reckoner for the purposes of fixing the revised pay in the corresponding pay scale. That created confusion. The said ready-reckoner was also considered by the Tribunal while deciding the review application i.e. Misc. Application No. 218/2001 decided on 17th November, 2001. In paragraph 8 of the judgment reads as under: 8. It appears from the above submissions of Government Advocate that only because a wrong Table number was mentioned in the operative part of the original order under review that an entirely unintended benefit has flowed to the subsequent petitioners. Here it may also be mentioned that Table 31 and other Tables are only ready reckoners issued by Government for fixing the pay of Government servants drawing pay at different stages in the pre-revised scales in the new revised scales so as to facilitate quick pay fixation. They do not prescribe the new scales. The new revised scales are given either in Schedule I or II of the Pay Rules 1983 against the corresponding un-revised scales and being part of the rules have the requisite statutory force. The pay fixations were also required to be carried out as per the provisions contained in the rules. The prayer in the original petition made by the non-applicant for fixing his pay as per Table 31 was therefore, in this light misconceived. There was no need for a reference to any Table. There is thus an apparent error on the face of the record. The prayer in the original petition made by the non-applicant for fixing his pay as per Table 31 was therefore, in this light misconceived. There was no need for a reference to any Table. There is thus an apparent error on the face of the record. The reference to Table 31 which pertains to Inspectors of the executive force under circumstances brought out above has created a situation which has led to extension of an entirely unintended benefit. There being an apparent error on the face of the record the original order deserves to be recalled and reviewed and the error corrected....... The State Government considered the impact of all the earlier judgments passed by the Tribunal and also by this Court and thereafter issued a circular dated 25-3-2006 whereby the State Government clarified that while fixing the basic pay of the employees i.e. the petitioners in the corresponding revised pay scale w.e.f. 1-4-1981 of the existing pay scale of the petitioners, in which they were prior to 1-4-1981, the basic pay shall be fixed. This was issued on the basis of memorandum of the Finance Department dated 6th May, 2005. On the basis of the same, the basic pay of the petitioners was to be fixed in the corresponding pay scale of the existing pay scale w.e.f. 1-4-1981 and accordingly the basic pay was directed to be fixed by counting the ad hoc increase also. Since the basic pay of the petitioners while counting Rs. 50/-, Rs. 60/- and Rs. 70/- was already fixed in the next higher corresponding pay scale, therefore, the State Government directed for the recovery of the amount. In view of the aforesaid, the question in the present case is that when this Court while deciding series of cases by its judgment dated 19-2-2004 has already directed that the matter is already covered by the judgment passed by the Tribunal in Misc. Application No. 218/2001 decided on 17th November, 2001 then it has to be seen as to what is the impact of that judgment and what that judgment is, passed by the Tribunal. The Tribunal in para-8 of its judgment passed on the review application held that the State Government has specifically directed that all the employees were entitled for the fixation of their basic pay in the corresponding revised pay scale w.e.f. 1-4-1981. The Tribunal in para-8 of its judgment passed on the review application held that the State Government has specifically directed that all the employees were entitled for the fixation of their basic pay in the corresponding revised pay scale w.e.f. 1-4-1981. Then, the corresponding revised pay scale w.e.f. 1-4-1981 has to be understood. To ascertain the same it has to be seen that before 1-4-1981 the employees i.e. the petitioners were in which pay scale and the corresponding revision of that pay scale would be the revised pay scale in which the basic pay of the petitioners has to be fixed while counting Rs. 70/- in terms of Rule 7 of the M.P. Revision of Pay Rules, 1983. What happened in this case is that while counting the ad hoc increase in the pay scale existing prior to 1-4-1981 whatever the basic came, on that basic, rather than giving the corresponding revised pay scale, the next higher pay scale was given which was impermissible under the M.P. Revision of Pay Rules, 1990, which was prescribed for Executive cadre. The Tribunal in para-8 of the judgment passed in review and after considering the same in detail the Tribunal clarified its earlier order and came to conclusion that the benefit shall be given under the revised pay scale then the Tribunal while passing the order in O.A. No. 45/98 never meant for grant of higher pay scale but what the Tribunal directed was that only in the corresponding pay scale, Rs. 70/- has to be counted for the purposes of arriving at the basic pay. With reference to a Table appended to the Rules, the Tribunal said that it is only a ready-reckoner which does not mean that on that basis a next higher pay scale has to be provided. Thus, the Tribunal in clear words has already explained the judgment passed in O.A. No. 45/1998 and further held that the mistake occurred in the judgment stands rectified by giving the direction to the respondents to fix the basic pay in the corresponding revised pay scale w.e.f. 1-4-1981 but it was never intended to provide a subsequent higher pay scale w.e.f. 1-4-1981. This Court by its judgment dated 19-2-2004 passed in series of writ petitions has also given a direction that the judgment so passed by the Tribunal in the review application should be given effect to. This Court by its judgment dated 19-2-2004 passed in series of writ petitions has also given a direction that the judgment so passed by the Tribunal in the review application should be given effect to. Petitioners also agreed to the same and when the contempt petitions were preferred then at no point of time this Court in the contempt petitions ever directed for grant of next higher pay scale to the corresponding revised pay scale of unrevised pay scale. Learned counsels appearing on behalf of the petitioners during the course of argument have not been able to satisfy this Court as to how all the categories of the petitioners were entitled to be given the benefit of the next higher scale of pay to the corresponding revised pay scale of unrevised pay scale. In the absence of any entitlement to the next higher scale of pay the employees such as the petitioners have to be put in the corresponding revised pay scale of the existing pay scale by counting the ad hoc increase to fix the basic pay in the corresponding revised pay scale. The State Government also agreed that the ad hoc increase shall be counted while fixing the basic pay of the petitioners in the corresponding revised pay scale. Thus, there is no question that the State Government has not granted Rs. 70/- for the fixation of the pay of the petitioners in the corresponding revised scale of pay w.e.f. 1-4-1981 under the M.P. Revision of Pay Rules, 1983 made effective from 1-4-1981. Since all the employees wrongly got the benefit of higher pay scale to which they were not entitled to but they were only entitled to the benefit of the corresponding revised pay scale from 1-4-1981, therefore, as a necessary corollary the recoveries have also been effected. Since all the employees wrongly got the benefit of higher pay scale to which they were not entitled to but they were only entitled to the benefit of the corresponding revised pay scale from 1-4-1981, therefore, as a necessary corollary the recoveries have also been effected. On the basis of the discussion, as aforesaid, the matter with regard to the corresponding revised pay scale has already been dealt with by the Tribunal and ultimately when the final judgment was passed by the Tribunal while deciding the review in operative portion of the judgment passed by the Tribunal i.e. para-10 puts the controversy at rest and para-10 is hereinbelow: In view of the aforesaid discussion and looking to the special circumstances of the case the delay in filing the present petition is condoned so that no unintended financial benefit may pass to any person and the cause of substantial justice is advanced and it is further directed that in para 8 of the order sought to be reviewed instead of words and figures "revised pay scale as per Table 31" the words "corresponding revised pay scale as applicable to him under the provisions" shall be deemed to have been substituted with effect from the date of passing of the order. The figure and word "7(b)" shall also be deemed to be substituted by the figures and word "7(1)(b)" from the same date. It is also to be noted that the grant of any higher pay scale than prescribed in the schedule of Rule 7 with regard to the categories of the persons shall also be contrary to Rule 7 and Schedule II attached to the M.P. Revision of Pay Rules, 1990 wherein the specific corresponding revised pay scale of the existing pay scale has been prescribed in which they were prior to 1-4-1981. The petitioners are not entitled to any other pay scale than prescribed under the M.P. Revision of Pay Rules, 1990. The Apex Court in The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, has held that where the amount has been paid and is directed to be recovered then the principles of natural justice ought to have been followed. The Apex Court in The State of Karnataka and Another Vs. Mangalore University Non-Teaching Employees Association and Others, has held that where the amount has been paid and is directed to be recovered then the principles of natural justice ought to have been followed. The Apex Court also held that it is now well settled that in all cases of violation of the principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of the principles of natural justice. In this regard, the relevant para-11 of the said judgment is reproduced as under: The only other question to be considered is whether the government orders impugned in the writ petitions are liable to be quashed on account of infraction of the principles of natural justice. It is true, in a case of this nature where the payment already made is sought to be recovered, thereby visiting the employees with adverse monetary consequences, the affected employees should have been put on notice and their objections called for. But, it is by now well settled that in all cases of violation of the principles of natural justice, the Court exercising jurisdiction under Article 226 of the Constitution need not necessarily interfere and set at naught the action taken. The genesis of the action contemplated, the reasons thereof and the reasonable possibility of prejudice are some of the factors which weigh with the Court in considering the effect of violation of the principles of natural justice. When undisputably the action taken is within the parameters of the rules governing the payment of HRA and CCA and moreover the university authorities themselves espoused the cause of employees while corresponding with the Government, it is difficult to visualize any real prejudice to the respondents on account of not affording the opportunity to make representation. We cannot, therefore, uphold the view of the Appellate Bench of the High Court on this aspect of this case. Applying the aforesaid ratio, there is no reasonable possibility of there being any prejudice. We cannot, therefore, uphold the view of the Appellate Bench of the High Court on this aspect of this case. Applying the aforesaid ratio, there is no reasonable possibility of there being any prejudice. The point with regard to corresponding pay scale has already been decided by the Tribunal and the Tribunal thereafter held that corresponding revised pay scale does not mean any higher pay scale to the corresponding revised pay scale. This Court has also directed that the judgment passed by the Tribunal in review is final and has to be implemented. Since the question involved in the matter has already been decided with regard to corresponding revision of pay scale, therefore, there is no question of there being any prejudice or reasonable possibility of there being any prejudice. Thus, no question of giving any opportunity arises. No other point is argued. For the reasons stated hereinabove, the respondents are entitled to recover the said amount and I do not find any illegality committed by the State while passing the impugned orders and also effecting the recoveries from the salary of the petitioners. Accordingly all these petitions stand dismissed. Final Result : Dismissed