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Madhya Pradesh High Court · body

2009 DIGILAW 1044 (MP)

Kurupneth Keshwan Ravindran v. State of M. P.

2009-08-27

SHANTANU KEMKAR

body2009
ORDER Shantanu Kemkar, J. 1. Feeling aggrieved by the order dated 15-3-2004 (Annexure P-1) by which fixation of his pay was done with retrospective effect on lower pay scale, the order dated 23-12-2004 by which recovery of Rs. 68,257/- has been ordered, the objections raised by the Treasury Department of the respondents on 30-12-2002 (Annexure P-15A) about wrong fixation of pay and recovery of excess payment was directed, similar objection of the Treasury Department raised on 27-1-2005 (Annexure P-16), the order dated 22-2-2005 (Annexure P-17) reducing his pay from Rs. 4500-7000/- to Rs. 4000-6000/- and last pay from Rs. 7000 to Rs. 6750/- and by the recovery order (Annexure P-18) by which recovery of Rs. 34,901/- is ordered from his retiral benefits, the petitioner has approached this Court through this petition under Article 226/227 of the Constitution of India. 2. Briefly stated the petitioner was appointed on 28-11-1964 on the post of Lower Division Clerk in the Panchayat and Social Justice Department of the Government of M. P. and on his attaining the age of superannuation he has been retired from service w.e.f 31-5-2005 from the post of Divisional Head Clerk/Assistant Grade-1. The case of the petitioner is that after his appointment on the post of L.D.C., he was promoted vide order dated 7-7-1980 to the post of U.D.C., and thereafter he was further promoted to the post of Accountant vide order dated 1-10-1982 (Annexure P-3) in the pay scale of Rs. 205-375/-. The pay scale of the post of Accountant was revised to Rs. 635-950/- w.e.f. 1-4-1981 under M.P. Revision of Pay Rules, 1983 (Annexure P-4). It was further revised to Rs. 1200-1800/- w.e.f. 1-1-1986 (Annexure P-5) and on the basis of the order dated 14-10-1987 (Annexure P-5) by the Finance Department the said pay scale was modified/amended to Rs. 1200-1840/- w.e.f. 1-4-1987. 3. It has been averred by the petitioner that he was promoted from the post of Accountant to the post of Head Clerk of the District in the same pay scale of Rs. 1200-1840/- vide orders dated 16-6-1989 (Annexure P-6). Since on promotion to the post of Head Clerk of the District his pay scale was same as he was getting prior to promotion, he was extended the benefit of FR 22-D by the respondents. 4. The pay scale of the post of Head Clerk-cum-Accountant which the petitioner was holding was Rs. 1200-1840/- vide orders dated 16-6-1989 (Annexure P-6). Since on promotion to the post of Head Clerk of the District his pay scale was same as he was getting prior to promotion, he was extended the benefit of FR 22-D by the respondents. 4. The pay scale of the post of Head Clerk-cum-Accountant which the petitioner was holding was Rs. 1200-1840/- the same was revised to 1200-2040/- by M.P. Revision of Pay Rules, 1990 (Annexure P-7). Thereafter vide order dated 22-9-1995 (Annexure P-8) the petitioner was promoted from the post of District Head Clerk-cum-Accountant to the post of Divisional Head Clerk in the pay scale of Rs. 1320-2040/-. The said pay scale of Divisional Head Clerk/Assistant Grade-I was revised to 1400-2340 and on the basis of the clarification dated 14-5-1998 (Annexure P-8A) issued by the Finance Department of the State Government the petitioner was also extended the benefit of revision of pay scale and was fixed in the pay scale of Rs. 1400-2340. The said Circular Annexure P-8A of the Finance Department made it clear that the Assistant Grade-I whether promoted from the post of Assistant Grade-II, Accountant-cum-Head Clerk, Trained Accountant or Head Clerk or have been promoted after passing of the Departmental Examination and Accounts Examination shall be entitled for the revised pay scale of Rs. 1400-2340/-. Thereafter the pay scale of 1400-2340 was revised to 4500-7000 which was fixed in the case of petitioner w.e.f. 1-4-2002 vide order dated 18-5-2004 (Annexure P-20) along with similarly situated employees as per the documents Annexure: P-20 and the Gradation list (Annexure P-21). 5. The grievance of the petitioner that in view of the law laid down by this Court by a Division Bench of this Court in the case of State ofM. P. vs. Dayaram Patidar, Writ Petition No. 1104/01 decided on 4-10-2002 he was rightly extended the benefit of FR 22-D, since on his promotion to the post of Head Clerk-cum-Accountant his pay scale on promotion was the same as that of the lower post which he was holding, therefore, rightly, applying the ratio of the judgment passed by the Division Bench of this Court in the case of State ofM. P. vs. Dayaram Patidar (supra) he was extended the benefit of FR 22-D. According to him the benefit of FR 22-D which was already extended in his favour could not have been revoked and the recovery as has been ordered could not have been ordered at the time of settlement of his retiral dues that too without affording any opportunity of hearing to him. He submits that the impugned orders are violative of principles of natural justice as also the law laid down by the Division Bench of this Court in the case of State ofM. P. vs. Dayaram Patidar (supra). It is also the case of the petitioner that since he was promoted to the post of Divisional Head Clerk which was the post equivalent to the post of Assistant Grade-I in the pay scale of Rs. 4500-7000/- his pay could not have been reduced with retrospective effect and his last pay drawn could not have been reduced to Rs. 6750/- in place of Rs. 7000/-. He also contended that the benefit of FR 22-D and the pay scale was given to him not on account of any fraud or misrepresentation on his part and as such the impugned recovery at the time of his retirement is violative of the law laid down by the Supreme Court in the case of Sahibram vs. State of Haryana, 1994(2)SCC 52 and also in case of Shyambabu Verma vs. Union of India, 1994(2)SCC 521. He, therefore, prayed that the entire action of the respondents including the impugned orders and recoveries, the impugned Treasury objections be quashed. 6. The respondents have filed reply and have stated that the petitioner was wrongly extended the benefit of FR 22-D and as such the order of recovery was passed and his pay scale was rightly reduced on the basis of the objection raised by the fifth respondent. 7. Having heard the learned counsel for the parties and after consideration of the averments made in the petition and the return and also the documents filed by the parties in my considered view the petition deserves to be allowed. 8. The petitioner on his promotion to the post of Head Clerk-cum-Accountant, was getting the same pay scale which he was getting prior to his promotion in the circumstances, applying ratio of the judgment of the Division Bench of this Court in the case of State ofM. 8. The petitioner on his promotion to the post of Head Clerk-cum-Accountant, was getting the same pay scale which he was getting prior to his promotion in the circumstances, applying ratio of the judgment of the Division Bench of this Court in the case of State ofM. P. vs. Dayaram Patidar (supra) the extension of benefit of FR 22-D was rightly granted to him. In the circumstances, the action of the respondents and the objection of the Treasury department of the respondents for ordering to recover the amount by ordering withdrawal of the said benefit of FR 22-D cannot be said to be justified. Moreover fixation of petitioner's pay scale at 1400-2340, in view of the clarification of the Finance Department Annexure P-8A, cannot be held to be illegal. It is also clear that the petitioner was fixed in the pay scale of Rs. 4500-7000/- w.e.f. 1-4-2002 on permanent basis vide order dated 18-5-2004 (Annexure P-20). The said pay scale of Rs. 4500-7000/- was granted to the petitioner as also to the similarly placed employees as would be clear from Annexure P-20 and Annexure P-21. It is also seen from Annexure P-21 that the Circular of the Finance Department Annexure 8-A was applied not only in the case of the petitioner but also in the case of various other similarly placed employees. 9. Admittedly, the benefit of FR 22-D and the higher pay scale was granted to the petitioner till he was to retire. The grant of the said benefit to the petitioner was not as a result of fraud or any misrepresentation on the part of the petitioner. It is also not in dispute that before taking recourse of recovery or fixing the petitioner's pay to the lower scale after a long lapse of time, no show cause notice or opportunity of hearing was afforded to him. In the case of Bhagwan Shukla vs. Union of India and others, AIR 1994 SC 2480 , it has been held by the Supreme Court that reduction of basic pay which has a civil consequence cannot be ordered without opportunity to show cause against such reduction. The Supreme Court further held that such action of reduction of basic pay if taken without opportunity of show cause would be a flagrant violation of the principles of natural justice and fair play and cannot be sustained. 10. The Supreme Court further held that such action of reduction of basic pay if taken without opportunity of show cause would be a flagrant violation of the principles of natural justice and fair play and cannot be sustained. 10. In the circumstances, in view of the law laid down by the Supreme Court in the case of Sahibram vs. State of Haryana (supra), in case of Shyambabu Verma vs. Union of India (supra) and in the case of Bhagwan Shukla vs. Union of India and others (supra) as also in view of the law laid down by the Division Bench of this Court in the State of M. P. vs. Dayaram Patidar (supra) the impugned orders and the objections raised by the fifth respondent being wholly illegal and violative of the principles of natural justice are liable and are hereby quashed holding that the benefit of FR 22-D was rightly extended in favour of the petitioner and that his pay was rightly fixed in the pay scale of 4500-7000. 11. Accordingly, the petition is allowed. The impugned orders by which the petitioner's pay scale has been reduced and recovery has been ordered are quashed. The respondents shall not recover the amount proposed to be recovered from the petitioner on the basis of the impugned orders and the objections of the respondent No-5. The respondents are directed to grant regular pension to the petitioner treating his last pay drawn to be Rs. 7,000/-. Necessary exercise be completed by the respondents within three months and the arrears as may be due be released in his favour within the said period of three months. 12. With the aforesaid directions, the petition stands allowed, however, with no orders as to costs.