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Madhya Pradesh High Court · body

2011 DIGILAW 300 (MP)

G. P. Bhargav v. State of M. P.

2011-03-04

RAJENDRA MENON

body2011
ORDER 1. Petitioner, who has retired from the post of Deputy Chief Executive Officer, has filed this writ petition challenging the order dated 8.12.2010 (Annexure P-l0) by which refixation of pay has been ordered and certain benefits of pay fixation earlier granted on promotion to the post of Deputy Chief Executive Officer, are withdrawn and recovery ordered. 2. Facts indicate that petitioner was initially appointed as LDC on 1.9.1968 in Municipal Council, Pipariya, where he worked upto 1982. In the meanwhile, in the year 1976 when Special Area Development Authority (hereinafter referred to as 'SADA'), Pachmarhi was constituted, the limit of this authority was extended to the area coming under Municipal Council Pipariya. Accordingly on the basis of the application submitted, petitioner's services were absorbed in SADA, Pachmarhi and petitioner was transferred to SADA, Pachmarhi in the capacity of Head Clerk. This fact is not in dispute. Vide order dated 24.12.1982 Annexure P-l, two posts of Deputy Chief Executive Officer were created by the State Government, one for Pachmarhi and one for Pipariya. It is the case of the petitioner that vide. order dated 31.3.1985, Chairman of SADA, Pachmarhi promoted the petitioner to the post of Deputy CEO. However, on 31.3.1985, as no separate scale of pay for the post of Deputy CEO was prescribed, petitioner continued to draw pay in the scale of 1290-2180, which was the pay drawn by the petitioner while he was working as Head Clerk. Petitioner continued to draw the said pay in the scale prescribed for the Head Clerk and when the pay revision took place on 1.1.1986 and when the pay in the scale 1290-2180 was revised to 1540-2740, petitioner was also granted revision of pay in the scale prescribed for Head Clerk, i.e., 1540-2740 with effect from 1.1.1986. Thereafter, another revision took place and petitioner's pay was also revised to 2000-3000. This was the pay prescribed for the post of Head Clerk and this pay-scale was given to the petitioner again as no separate pay-scale for the post of Deputy CEO was prescribed. Petitioner also contends that whenever revision of pay took place the benefit of pay fixation under FR-22D by grant of one increment in the higher scale was also not granted to him. Petitioner also contends that whenever revision of pay took place the benefit of pay fixation under FR-22D by grant of one increment in the higher scale was also not granted to him. Be it as it may be, the M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987 was notified by the State Government in exercise of the powers conferred on it under sub-section (2) of section 76B read with section 85 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973, and this Recruitment Rule was brought into force with effect from 1.4.1988 and made applicable to all the SADA authorities. As far as recruitment to class I and II posts are concerned, the post of Deputy CEO, SADA was classified as a class II post and the pay-scale of 3000-4500 w.e.f 1.7.1995 was prescribed for this post. Annexure P-3 is the notification issued in this regard. By virtue of this notification that came into force with effect from 1.7.1995, as is evident from Annexure P-3, the Chairman, SADA passed an order on 28.11:1996 vide Annexure P-4, giving the pay-scale 3000-4500 to the petitioner, which was the pay prescribed for the post of Deputy CEO with effect from the date the petitioner was promoted to this post on 31.3.1985, vide Annexure P-2. Accordingly, pay fixation of the petitioner was done in the new scale of 3000-4500 with effect from the date of promotion i.e. ...31.8.1985 and as on 1.1.1996 his pay was fixed at the stage 4,125/- and at 4,250/- on 1.3.1996. The pay fixation has been done as per Annexure P-5. Thereafter, on the basis of recommendation of the 5th Pay Commission, which came into force with effect from 1.1.1996, the pay-scale of 3000-4500 was revised to 10,000-15,200 and in the meanwhile after working in SADA, Pachmarhi till May 1998, petitioner was transferred to Nagar Panchayat, Khajuraho on 19.6.1998 vide Annexure P-6. He joined at Khajuraho as Chief Municipal Officer and the revised pay-scale of 10,000-15,200/- was granted to him and in November 1998 his pay was fixed at 11,625/- as on 1.1.1996. Thereafter, on 1.3.1996 the pay was fixed at 11,950/- even though the pay fixation flowing from 5th Pay Commission's recommendation was done with effect from 1.1.1996, actual payment was only from 1.11.1998, petitioner claims the difference of this pay fixation from 1.1.1996 to 1.11.1998. Thereafter, on 1.3.1996 the pay was fixed at 11,950/- even though the pay fixation flowing from 5th Pay Commission's recommendation was done with effect from 1.1.1996, actual payment was only from 1.11.1998, petitioner claims the difference of this pay fixation from 1.1.1996 to 1.11.1998. Thereafter, working on the post as indicated hereinabove, petitioner retired on attaining the age of superannuation in October 2000 and after his retirement which his retiral dues were not settled and when the service benefit were not properly counted, petitioner filed Writ Petition No.9098/2007(S) before this Court, which is still pending. 3. In the meanwhile, the Director, Urban Administration and Development passed an order on 20.2.2008 Annexure P-7, counting the period of 23 years 7 months as the qualifying service of the petitioner and granted him anticipated pension of 90% with effect from 1.11.2008 on the basic pay of 15,200/-. Thereafter certain interim orders were passed in the pending writ petition and when this Court gave an interim order on 16.12.2009, vide Annexure P-9 in Writ Petition No.9098/2007(S), it is the case of the petitioner that instead of granting post retiral benefits and settling his claim, the impugned action was taken, refixing the entire pay and ordering recovery of the excess amount. 4. Shri V.S. Shroti, learned Senior Advocate, appearing for the petitioner taking me through the documents and emphasizing that under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987, particularly rule 8, the appointing authority with regard to class I and II posts are the Chairman and as petitioner's appointment on ' the post of Deputy CEO vide Annexure P-2 dated 31.3.1985 is made by the Chairman of SADA, Pachmarhi, the said appointment was in accordance to the rules and as the post was also sanctioned by the State Government for SADA, Pachmarhi vide Annexure P-l on 24.12.1982, it is argued by learned Senior Advocate that the respondents have committed an error in treating the petitioner's appointment to the post of Deputy CEO with effect from 31.3.1985 to be illegal. Taking me through the provisions of the Rules and appointment made, the case of the petitioner is that as petitioner is appointed in accordance to the statutory rules as Deputy CEO on 31.3.1985 action of the respondents in treating the petitioner to be appointed to this post only with effect from 1.7.1995 is illegal and unsustainable. That apart, Shri Shroti points out that petitioner's fitment in the different pay-scale as has been done in Annexure P-l0 is illegal. Therefore, contending that the petitioner should be deemed to have been appointed as Deputy CEO in the pay-scale of 3000-4500 with effect from the date he was promoted to this post vide Annexure P-2, on 31.3.1985 and the consequential pay fixation and arrears, the first prayer made is to quash the order Annexure P-l0 so far as it denies the aforesaid benefit to the petitioner and directs for fixation of pay in the scale 3000-4500 with effect from 1.6.1996. 5. That apart, the second ground of challenge to order Annexure P-l0 is on the ground that the pay fixation done in this order is not correct. It is stated that when the revised pay-scale 10,000-15,200/- was made effective from 1.1.1996, petitioner's pay is fixed in the minimum of the scale, i.e., 10,000/- whereas petitioner was already drawing salary more than 3,000/ - in the scale 3000-4500/-. It is stated that without granting the benefit of FR-22D, pay fixation done at the minimum of the pay-scale treating the petitioner to be drawing only 3,000/- as on 1.1.1996 is not correct. To that effect, the pay fixation which is not done point to point is stated to be illegal. 6. Finally, the third relief claimed is that the benefit of Kramonnati on completing 8 years and 12 years of service in accordance to the circular dated 24.1.2008 has not been granted to the petitioner. Accordingly, seeking the aforesaid benefits this writ petition has been filed. Finally it was argued by Shri Shroti, learned Senior Advocate, that the action of the respondents in treating the appointment of the petitioner to the post of Deputy CEO vide Annexure P-2 to be illegal is unsustainable, it be quashed. Accordingly, seeking the aforesaid benefits this writ petition has been filed. Finally it was argued by Shri Shroti, learned Senior Advocate, that the action of the respondents in treating the appointment of the petitioner to the post of Deputy CEO vide Annexure P-2 to be illegal is unsustainable, it be quashed. Learned counsel further submits that in the alternate if the contention of the respondents are found to be correct, then no recovery can be made from the amount already paid to the petitioner after his retirement in view of the law laid down in the case of Sahib Ram v. State of Haryana and others [1995 Supp.(1) SCC 18]. Lamed Senior Advocate further relies upon the following judgments: State of M.P. and others v. R.L. Ogale and others, [ 2006(1) MPLJ 412 ]; State of M.P. and others v. R.C. Varma and another [ 2007(1) MPHT 48 (Chhattisgarh], and certain other judgments in support of his contention that recovery cannot be ordered. 7. Respondents have filed reply and it is the case of the respondents that petitioner's appointment by the Chairman, SADA, Pachmarhi on the post of Deputy CEO is illegal. It is argued by the respondents that the Chairman could appoint the petitioner in accordance to the power conferred upon him by virtue of rule 8 of the Recruitment Rules of 1976 only after prior approval of the authority. 'Authority' according to the respondents would mean 'SADA' as formulated and detailed in section 65 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and as the appointment of the petitioner to the post of Deputy CEO vide Annexure P-2 dated 31.3.1985 is not in accordance to the requirement of law, it is stted that the said appointment is itself illegal, petitioner continues to be a Head Clerk and, therefore, in passing the impugned order it is stated that the respondents have not committed any error. 8. Even though SADA, Pachmarhi is not a party in the proceedings, but by filing an application for intervention I.A. No.2218/2011, SADA, Pachmarhi through Shri G.P. Singh, learned counsel, have stated that the petitioner's appointment on the post of Deputy CEO by the then Chairman was illegal and the State Government has not confirmed the petitioner on that post as is evident from Annexure D-7. Primarily, it is the case of the respondents that petitioner was not appointed to the post of Deputy CEO in the year 1985 as per Rules and, therefore, no benefit of such appointment can be conferred to the petitioner. 9. Petitioner by filing a rejoinder has tried to refute the aforesaid contention and it is the case of the petitioner that at the relevant time when he was appointed by the Chairman vide Annexure P-2, the SADA was dissolved and it was the Chairman who was discharging the duties of the 'authority' and, therefore, the appointment of the petitioner is proper and the action of the respondents is unsustainable. 10. Having heard learned counsel for the parties and on consideration of the totality of the facts and circumstances of the case, it is very clear from the records that even though petitioner was shown to be appointed as Deputy CEO vide order dated 31.3.1985 Annexure P-2 by the then Chairman, SADA, the pay-scale and other benefits extended to the petitioner was that of his substantive post held prior to 31.3.1985, i.e., ...on the post of Head Clerk. Petitioner himself admits that as no separate pay-scale for the post of Deputy CEO was prescribed even after his appointment as Deputy CEO on 31.1.1985 petitioner continued to draw salary in the pay-scale prescribed for a Head Clerk, i.e., ... in the scale 1290-2180/-, subsequently revised to 1540-2740 and finally to 2000-3000. It is also clear from the records for the first time the pay-scale 3000-4500 was prescribed for the post of Deputy CEO with effect from 1.7.1985, when the notification Annexure P-3, was issued on 30.5.1996, by amending the Recruitment Rules. That being so, for the present even if the dispute between the parties with regard to appointment of the petitioner on the post of Deputy CEO with effect from 31.3.1985 is not taken note of, the fact remains that the petitioner continued to draw pay prescribed for the post of Head Clerk right from 31.3.1985 upto 30.5.1996, when the notification Annexure P-3 was issued and in the order impugned Annexure P-l0, respondents have fixed the pay of the petitioner in the scale 30004500 prescribed for Deputy CEO with effect from 1.7.1995 as is evident from page 35 of the paper book. That being so, it is clear that the respondents treat the petitioner to be duly appointed as a Deputy CEO for the purpose of granting him the pay-scale of 3000-4500 with effect from 1.7.1995, when the said pay-scale was notified for the post of Deputy CEO by amendment in the statutory provision. The respondents do not treat the petitioner to be Head Clerk and did not fix his pay so treating even on 1.7.1995. Therefore, it is a case where the respondents themselves are treating the petitioner to be a Deputy CEO for the purpose of granting him the benefit of pay-scale 3000-4500 with effect from 1.7.1995. This being the situation, I am of the considered view that the question with regard to tenability or otherwise of the appointment made of the petitioner to the post of Deputy CEO with effect from 31.3.1985 need not be gone into, for the simple reason that inspite of promotion to the said post the petitioner continued to get the pay prescribed for the post held by him prior to 31.3.1985, i.e., ... the post of Head Clerk and a scale of pay prescribed vide notification Annexure P-3 w.e.f.1.7.1995 cannot be given retrospective effect from 31.3.1985. 11. The entire matter has to be considered from a different perspective i.e. ... the action of SADA, Pachmarhi and its Chairman in passing the order dated 28.11.1996 Annexure P-4 and granting the pay-scale 3000-4500 to the petitioner retrospectively with effect from 31.3.1985. If ultimately it is found that the pay-scale 3000-4500 cannot be granted retrospectively to the petitioner with effect from 31.3.1985, I am of the considered view that the dispute with regard to petitioner's appointment to the post of Deputy CEO by the Chairman, SADA w.e.f.31.3.1985 will be of no consequences as petitioner, on respondent's own showing is entitled to draw salary in the pay-scale 3000-4500 with effect from 1.7.1995 and in the impugned order Annexure P-l0, they have fixed the petitioner's salary accordingly, treating the petitioner to be a Deputy CEO w.e.f.1.7.1995. 12. Admittedly, when the petitioner was promoted vide Annexure P-2 on the post of Deputy CEO, no prescribed pay-scale for the said post was available. 12. Admittedly, when the petitioner was promoted vide Annexure P-2 on the post of Deputy CEO, no prescribed pay-scale for the said post was available. For the first time, the post and the pay-scale was notified vide Annexure P-3, on 30.5.1995, and the Notification was made effective from 1.7.1995, when the pay-scale 3000-4500 was not at all in existence in the year 1985, it is not known as to how a pay-scale which was not at all prescribed in the year 1985 could be granted to the petitioner vide order Annexure P-4 on 28.11.1996, by making it retrospective. The Notification Annexure P-3 prescribing the pay-scale 3000-4500 for the post of Deputy CEO is only given prospective effect from 1.7.1995 and as the pay-scale itself is notified under the statute with effect from 1.7.1995. the then Chairman had no authority to grant retrospective effect to this notification and grant benefit to the petitioner vide order dated 28.11.1996 Annexure P-4. The petitioner would get the benefit of pay-scale 3000-4500 only with effect from the date the pay-scale was notified vide Annexure P-3 on 1.7.1995 and not from an earlier date. That being so, giving retrospective effect to notification Annexure P-3 by the SADA, Pachmarhi without due approval, sanction and concurrence of the State Government is nothing but an illegal act of the Chairman, SADA, Pachmarhi which cannot be approved by this Court. 13. Accordingly, this Court is of the considered view that petitioner would be entitled to pay in the pay-scale 3000-4500 only with effect from 1.7.1995 and as in the impugned order Annexure P-10 respondents have so done, there is no error in the same and in that view of the matter, the dispute being highlighted by the parties before this Court with regard to tenability of the petitioner's appointment on the post of Deputy DEO with effect from 31.3.1985 need not be gone into. as it would be only of academic consequence now, once the respondents themselves treating the petitioner to be Deputy CEO have fixed his pay in the pay-scale 3000-4500 in accordance to the Notification Annexure P-3, w.e.f. 1.7.1995. To that effect, there is no error in the action of the State Government and, therefore. I am of the considered view that the dispute canvassed by Shri Shroti. learned Senior Advocate. To that effect, there is no error in the action of the State Government and, therefore. I am of the considered view that the dispute canvassed by Shri Shroti. learned Senior Advocate. to the effect that petitioner is duly appointed as a Deputy CEO with effect from 31.3.1985 and the counter argument of the respondents that this appointment is illegal need not be gone into at all in this writ petition, as under law itself petitioner would be entitled to the pay-scale 3000-4500 only with effect from the date such pay-scale was notified vide Annexure P-3 and the State Government is itself granting the aforesaid pay-scale to the petitioner with effect from the date it was notified vide Annexure P-3, treating him to be a Deputy CEO. 14. However, while fixing the pay of the petitioner in the pay-scale 3000-4500 (revised to 10,000-15,200) with effect from 1.1.1996 respondents have not taken note of the fact that petitioner was already drawing salary in the sale 3000-4500 and as on 1.1.1996 his pay would be more than 3,000/-, it was in fact 4,125/ and while fixing the pay of the petitioner in the scale 10,000-15,200, after implementing the 5th Pay Commission's Recommendations, it should be fixed on point to point basis after taking note of the provisions of FR-22D and not on the minimum, of the scale i.e., 3,000/- (revised 10,000/-). To that effect the pay fixation ordered in the basic of 10,000/- as on 1.7.1995 seems to be unsustainable. To that effect Shri Shroti, learned Senior Advocate, is right in contending that the pay of the petitioner should be worked out on point to point basis and revised, to that effect respondents are directed to take action by taking note of the pay drawn by the petitioner as on 1.1.1996 in the pay-scale 3000-4500 (pre-revised), taking note of the pay of the petitioner as drawn on 1.1.1996, his pay be fixed in the revised scale of 10,000-15,200/- on point to point basis and not on the basis of 3,000/- i.e. 10,000/-, as done by the respondents, to that effect pay fixation ordered by the respondents on 8.1.2010 is found to be illegal and quashed and the respondents directed to make amendment to the pay fixation order Annexure P-10. That apart, arrears on such pay fixation w.e.f.1.1.1996 till actual payment be granted if it was granted to other employees of SADA. 15. That apart, arrears on such pay fixation w.e.f.1.1.1996 till actual payment be granted if it was granted to other employees of SADA. 15. As far as consideration of the petitioner's case for grant of Kramonnati in accordance to the circular dated 24.1.2008 is concerned, petitioner is entitled for consideration of his case for grant of Kramonnati and respondents are directed to proceed to consider the case for grant of Kramonnati in accordance to the requirement of the policy Annexure P-4 dated 28.11.1996 and decide his claim by a speaking order. Objection of the respondents to the effect that petitioner is not a Government servant and, therefore, the circular Annexure P-l1 dated 24.1.2008 is not made applicable to him, is wholly unsustainable. From the records it is clear that petitioner has been appointed as a Deputy CEO and in the light of the law laid down by Full Bench of this Court in the case of Suresh Chandra Sharma v. State of M.P. and others [ 2000(2) MPLJ 530 , paragraph 20], petitioner is a 'civil servant' and, therefore, the circular dated 24.1.2008 will be applicable in the case of petitioner also. To that extent, relief has to be granted to the petitioner. 16 As far as recovery of the amount already paid to the petitioner is concerned, in view of the law laid down in the case of Sahib Ram (supra), amount already paid to the petitioner are not to be recovered, benefits paid by the State Government while the petitioner was in service and now after his retirement, the amount cannot be recovered from him. Accordingly, even after refixation of pay of petitioner as directed hereinabove, if any recovery is to be made the same cannot be affected. 17. Therefore, arrears shall be payable to the petitioner only to the extent permissible on fixing his pay in accordance to the recommendations of the 5th Pay Commission w.e.f.1.1.1996, and if not already paid from the date it was made applicable to the establishment where the petitioner was working. To that effect, arrears be granted to the petitioner. 18. Accordingly, this petition is allowed to the extent indicated hereinabove and disposed of.