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Madhya Pradesh High Court · body

2013 DIGILAW 1133 (MP)

V. P. Chawla v. M. P. State Electricity Board

2013-09-18

K.K.TRIVEDI

body2013
JUDGMENT Seeking a direction against the respondents for payment of pension in appropriate manner in compliance of the order of the State Government, the petitioner, who was Ex Chairman of the M.P. State Electricity Board (herein after referred to as 'Board'), has approached this Court by way of filing this writ petition under Article 226 of the Constitution of India. 2. Brief facts are that the petitioner was initially appointed in the services of the Board in the year 1956, worked on different capacities and lastly was Executive Director of the Board. The petitioner had attained the age of superannuation, was inducted as a Member and Chairman of the Board and in such capacity he worked with effect from 11.05.1993 to 07.02.1996. This appointment was in terms of extension granted by the respondent-State and on appointment of the successor of the petitioner, he handed over the charge of the post of Chairman of the Board to his successor on 07.02.1996. It is the claim of the petitioner that the State Government while fixing the terms and conditions of the post of Chairman of the Board, issued an order categorically providing that the same salary and allowances as are admissible to the post of the Chief Secretary of the State, would be available to the Chairman of the Board. The revision of pay of the Chief Secretary was done with effect from 01.01.1996 and the said salary was drawn by the petitioner up to 06.02.1996. Since the petitioner was extended the benefit of the service conditions of the Chief Secretary of the State, under the relevant Pension Rules made by the Central Government, the petitioner was entitled to get the benefit of the pension of the post of Chairman of the Board. Since there was a modification made in the pension scheme of the Central Government by an order of the Government of India issued on 27.10.1997, making provisions for the grant of pension to the persons retired after 01.01.1996, the petitioner was entitled to get 50% of the emoluments paid to him while working on the post of Chairman, as pension. Since there was a modification made in the pension scheme of the Central Government by an order of the Government of India issued on 27.10.1997, making provisions for the grant of pension to the persons retired after 01.01.1996, the petitioner was entitled to get 50% of the emoluments paid to him while working on the post of Chairman, as pension. The pension was not fixed in such a manner by the Board, on the other hand treating as if the petitioner has retired from substantive post of Executive Director, the pension of the petitioner was revised and was fixed, he made approaches before the respondent-State and on such, after due consideration, an order was issued for making payment of pension to the petitioner in the rightful manner. However, despite the order so passed by the State, since the pension of the petitioner was not fixed in appropriate manner, the commutation of pension was not authorized in appropriate manner, he was required to approach this Court by way of filing the writ petition. The petitioner has claimed following reliefs in this writ petition: “i. to issue a writ of mandamus directing the respondents to fix the pension as per direction of State Govt. at Rs. 13000/- per month and pay the difference of dues forthwith from 7.2.96 onwards till his entitlement. ii. to issue a direction to the respondents to revise the amount of commutation of pension based on the pension of Rs. 13000/- as directed by the State Govt. vide its letter dated 24.3.01 and pay the difference of dues forthwith. iii. to issue a direction respondents to pay a compensation for the mental tension harassment and constant worry caused due to their inaction, negligence and malice in law. iv. to direct to pay interest @20% per annum from the date the amount became due (on account of (i) & (ii) above) till its payment. v. any other writ order or direction which the court deems fit be also allowed. vi. Cost of petition be allowed. 3. While filing the return, respondent No. 1 has contended that the State itself has issued the order directing that the pension of the petitioner was to be fixed in accordance to the norms adopted by the respondent Board. That being so, rightful pension of the petitioner was fixed, payment was made and the commuted pension was also paid accordingly. 3. While filing the return, respondent No. 1 has contended that the State itself has issued the order directing that the pension of the petitioner was to be fixed in accordance to the norms adopted by the respondent Board. That being so, rightful pension of the petitioner was fixed, payment was made and the commuted pension was also paid accordingly. The petitioner was not entitled to the pension in accordance to the Rules made by the Central Government for the said purpose, on the other hand petitioner would be deemed to have retired from the post of Executive Director and the Pension Rules, which the respondent Board has adopted, would be applicable in his case. Since the petitioner has worked on the higher post carrying higher pay scale, average emoluments were rightly worked out and in terms of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (herein after referred to as 1976 Rules'), the pension of the petitioner was rightly fixed. It is, thus, contended that the entire petition is misconceived and deserves to be dismissed. 4. The petitioner by way of filing rejoinder has not only controverted such a stand taken by the respondent No. 1 but has also brought on record an order passed by the Division Bench of this Court wherein it is categorically held that Chairman of the Board would be entitled to the benefits of Higher Pay Scale and upon retirement, would be given the benefit of the Pension Rules of the Central Government. Thus, it is reiterated that the petitioner has been wrongly denied his legal rights, therefore, the writ petition was filed. It is contended that ignoring the stand taken by the respondents, the petitioner would be entitled to the relief claimed in the writ petition. Though additional return is filed by the respondents but nothing much is stated except that proper fixation of the pension of petitioner has been done in terms of the Rules applicable and, therefore, such a claim made by the petitioner cannot be granted. 5. Heard learned Counsel for the parties at length and perused the record. 6. Though additional return is filed by the respondents but nothing much is stated except that proper fixation of the pension of petitioner has been done in terms of the Rules applicable and, therefore, such a claim made by the petitioner cannot be granted. 5. Heard learned Counsel for the parties at length and perused the record. 6. The sole question is wither such claim of the petitioner could have been denied in view of the fact that earlier stand taken by the respondent No. 1 was examined by this Court and accepting such contentions, the challenge to the correctness of the notification prescribing a particular cutoff date and classification in the matter of grant of service benefit was turned down by the Division Bench of this Court. The fact remains that in a miscellaneous petition such notification, classification and cutoff date prescribed for application of such notification was sought to be challenged before this Court. A stand was taken by the respondents that officers and employees of the Board were a class different than the Members of the Board constituted under the Electricity Supply Act, 1948. Examining such statutory provisions, this Court has recorded the submissions made by the Board as also by the petitioners in the said case, reached to the conclusion that such a classification and application of two Pension Rules for different sets of employees and officers and Members of the Board was permissible. In detail all the submissions made by the Board before this Court in the said case were recorded and after recording such contentions, the Division Bench of this Court has given the definite finding. It is not in dispute that this order passed by the Division Bench has been affirmed by the Apex Court by dismissing the appeal filed by the petitioners in the said case. Therefore, it would be necessary to examine what contentions were raised by the respondent Board and how such contentions were appreciated by the Division Bench of this Court. 7. Therefore, it would be necessary to examine what contentions were raised by the respondent Board and how such contentions were appreciated by the Division Bench of this Court. 7. In para 7 of the order passed in M.P. No. 1878/1989, S.C. Choudhary and others vs. M.P. Electricity Board, Jabalpur, on 17.12.2002, this Court has recorded the contentions raised by the Board, relevant part of which is abstracted herein below: “The terms and conditions of persons who are appointed as members of the Board are governed by the provisions of the Act made by the Parliament and rules framed therein by the State Government. The members of the Board constitute a different and distinct class and there is a difference between persons appointed as members of the Board and other employees of the Board. Emphasis has been laid on Section 5 of the Act to highlight that members of the Board form a separate class and they are governed by the rules like Indian Administrative Services rules or other similar rules. It is setforth in the return that the employees of the Board who happen to be appointed as members of the Board are governed by the terms and conditions as may be fixed by the State Government for its employees. The service conditions of the employees of the Board are governed by the regulation framed by the Board under Section 79(c) of the Act. The source relating to the terms and conditions of the members of the Board and the employees of the Board are quite different and such a distinction cannot be marginalised. It is highlighted that there does exist reasonable and acceptable classification between the members of the Board and other employees of the Board and in that event when the retiral benefits are fixed they do not offend the equality clause as enshrined under Article 14 of the Constitution. Members of All India Services are also appointed as members of the Board and therefore, the employees of the Board who happen to be appointed as members of the Board are entitled to similar treatment and they cannot be differentiated when they become members of the Board because of the fact that they come from different streams. Their pensionary benefits are governed by a set of rules framed by the State Government from time to time and not by the regulations framed by the Board. Their pensionary benefits are governed by a set of rules framed by the State Government from time to time and not by the regulations framed by the Board. It is highlighted that the classification is made by the Legislature but not by the Board and the classification so made has the rationale behind it as the members of the Board and the employees of the Board constitute two different classes. That apart, amongst members, because they come from different sources, there cannot be differentiation. A person who is appointed as a member of the Board, it is putforth in the affidavit, does not again become an employee of the Board. He becomes a member of a statutory body. When an employee is appointed as a member of the Board, he does not retain his lien in the services of the Board. There are several persons appointed directly as members or Chairman of the Board, who are not the employees of the Board. The employees of the Board who are made members are not treated to be on deputation or transfer and no deputation allowance is paid to them. The employees who are appointed as members of the Board do not hold any lien on their substantive post and they are superannuated as members of the Board.” 8. Such a stand taken by the respondent Board was thoroughly considered by the Division Bench of this Court and in paragraph 21 of the order the same was approved. For appreciation, paragraph 21 of the order is reproduced, which reads thus: “21. That apart, if a reasonable base is provided classification is permissible. Classification of officers into two grades with different scales of pay based either on academic qualifications or experience or length of service is regarded as valid as experience is treated as merit in itself and can be a valid foundation for classification. It is worth noting here that in the case of Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 the Constitution Bench ruled that legislative classification for different treatment is permissible so long as there is reasonable basis for such classification. The basic concept is that a conferral of benefit should not suffer either from over inclusiveness or under inclusiveness. In the case at hand, as has been stated earlier the Members of the Board are appointed by a different employer. The basic concept is that a conferral of benefit should not suffer either from over inclusiveness or under inclusiveness. In the case at hand, as has been stated earlier the Members of the Board are appointed by a different employer. They are governed by a different set of law meaning thereby their appointment, and the tenure of their service are controlled by the statute itself. The conditions of other employees are governed and controlled by regulation framed by the Board. Members are appointed from various sources and streams. True it is, an officer of the Board can be appointed as member but when he comes to hold the post of a member he definitely comes into a different category. Thus, we have no hesitation in our mind in arriving at the conclusion that members of the Board constitute a different class and, therefore, the challenge on the foundation that there is discrimination in conferring the retiral benefit to the members violates Article 14 of the Constitution and treating similar categories of employees of the Board in a dissimilar and unequal manner is without any substance. We reiterate that the assail that the members of the Board do not form a different class and fall in similar category with that of employees of the Board is sans substance. Thus, we do not find any substance in the submission of the learned Counsel for the petitioners and accordingly we are impelled to repel the same.” 9. Apart from the aforesaid decision, it is seen that the State Government vide order dated 11.06.1986 already decided that the Chairman of the Board will be entitled to the salary and allowances admissible to the Chief Secretary of the State and the Member of the Board would be entitled to the salary and allowances admissible to the post of Secretary of the State Government. The petitioner, thus, was entitled to grant of benefit of salary for the period he worked on the post of Chairman of the Board. In terms of the law laid-down by the Division Bench, the petitioner was to be treated as superannuated from the post of Chairman of the Board and his pension was required to be fixed in terms of the provisions of the Central Civil Services (Pension) Rules, 1972 (herein after referred to as 1972 Rules') and all the amended provisions made under the said Rules. The Central Government has already passed an order on 27.10.1997 directing fixation of pension under the new Pension provisions for the persons who have retired after 01.01.1996. A direction in that respect was again issued by the Central Government on 17.12.1998 and the pension of the post retiree with effect from 01.01.1996 was to be fixed in terms of the said direction. The petitioner was, thus, entitled to be paid the pension in terms of the provisions of the Rules aforesaid and as the Central Civil Services (Commutation of Pension) Rules, 1981 were extended in similar manner, the pension of the petitioner after commutation was to be paid in the manner indicated in the aforesaid Rules. When a representation to this effect was made, the State Government issued the direction for looking into the claim of the petitioner and to do the needful in accordance to the law. Since this was not done, present petition was brought before this Court. There was a folly on the part of the respondents to retire the petitioner with effect from 07.02.1996 from the post of Executive Director (T&D) of the Board which post the petitioner had already relinquished soon after his appointment as Chairman of the Board. In terms of the law laid-down by the Division Bench of this Court, the petitioner was to be treated as retired from the post of Chairman and was, thus, entitled to be paid the pension in terms of the 1972 Rules. 10. Consequently, such a claim made by the petitioner could not have been denied. Though it is stated that an order is issued by the State Government that the petitioner was not entitled to grant of pension in terms of the Central Rules as is contended by the respondents but nothing is found on record in this respect. On the contrary vide order dated 24.03.2001 respondent Board was directed to make payment of pension to the petitioner under the provisions of the Rules of the Central Government. This order was reiterated on 10.10.2002 and 12.03.2003. On the contrary vide order dated 24.03.2001 respondent Board was directed to make payment of pension to the petitioner under the provisions of the Rules of the Central Government. This order was reiterated on 10.10.2002 and 12.03.2003. It appears that thereafter some correspondence was done and on a reference made to the Finance Department some opinion was given on the basis of which such a stand was taken by the respondent Board but it further appears that these facts were never brought to the notice of the Finance Department that there was already a decision rendered in this respect by the Division Bench of this Court, with respect to the applicability of the Pension Rules for the Members and the Chairman of the Board. Therefore, such a stand taken by the respondents cannot be accepted at all. 11. Consequently this petition is allowed. The respondents are directed to fix the pension of the petitioner in terms of the provisions of Central Civil Services (Pension) Rules, 1972 as modified by the scheme made by the Central Government on 27.10.1997 and 17.12.1998, calculate the arrears of pension from the date the petitioner was entitled to the same and to pay the said amount to the petitioner with interest at the rate of 6% per annum. The respondents will also revise the commutation of pension of the petitioner after fixation of pension of the petitioner in terms of the directions given herein before and to make payment of balance amount of commutation of pension to the petitioner within a period of two months from the date of receipt of copy of this order. 12. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.