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Madhya Pradesh High Court · body

2013 DIGILAW 562 (MP)

Dilip Chaturvedi v. M. P. S. E. B.

2013-04-26

ALOK ARADHE

body2013
JUDGMENT : Shri Akash Choudhary, learned counsel for the petitioner. Shri Anoop Nair, learned counsel for the respondent. With consent of the parties, the matter is heard finally. In this writ petition, the petitioner inter alia has assailed the order dated 31-12-2005 to the extent it deletes the post of Librarian from the list of identified static cadre and to command the respondents to consider the case of the petitioner for second financial up-gradation w.e.f. June, 2008 and to accord him all the consequential benefits. The petitioner has also challenged the validity of the order dated 29-7-2008 by which the claim of the petitioner seeking benefit of second up-gradation of pay scale has been rejected. 2. Facts leading to filing of the writ petition briefly stated are that the petitioner, was initially appointed as Office Assistant Grade III in the erstwhile M. P. Electricity Board. The respondent-Board invited applications for the post of Assistant Librarian vide advertisement dated 9-3-1989. The petitioner participated in the process of selection and was appointed on the post of Assistant Librarian in the pay-scale of Rs. 1770-3325/- vide order dated 6-12-1980. The petitioner's pay-scale was revised to Rs. 4100 - 8900/- in terms of revision of pay scale which came into force w.e.f. 1-4-1994. The petitioner thereafter was promoted to the post of Librarian on 24-11-2004. The erstwhile M. P. Electricity Board issued a circular dated 9-7-1990 by which benefit of higher pay-scale to Class III and Class IV employees was extended to the employees and officers on completion of stipulated period of service and subject to terms and conditions mentioned therein. The benefit of first up-gradation of pay was to be extended to an employee on completion of nine years of service whereas, the benefit of second up-gradation of pay was to be extended on completion of 18 years of service. The petitioner became eligible for grant of first higher pay-scale on 30-6-1999. However, the benefit of first higher pay-scale was granted to the petitioner vide order dated 11-11-2004 w.e.f. 30-6-2004 in the pay-scale of Rs. 5600-10,400/-which was revised to Rs. 8000-15,350/-. An order dated 31-12-2005 was issued by the respondent by which it was decided to delete the post of Librarian from the list of identified static cadre, as a result of which the petitioner was debarred from getting the benefit of second higher pay-scale. 5600-10,400/-which was revised to Rs. 8000-15,350/-. An order dated 31-12-2005 was issued by the respondent by which it was decided to delete the post of Librarian from the list of identified static cadre, as a result of which the petitioner was debarred from getting the benefit of second higher pay-scale. Thereupon, the petitioner filed a writ petition namely W. P. No. 407/2002. The aforesaid writ petition was disposed of by a Bench of this Court vide order dated 10-2-2007 with the direction to the respondent to consider the case of the petitioner for grant of higher pay-scale in accordance with circular in vogue and on completion of qualifying years of service on the post in question. The petitioner thereafter submitted representations to the authorities of the respondents, however, the representations submitted by the petitioner was rejected on 29-7-2008 by a cryptic order on the ground that the claim of the petitioner was not in accordance with the rules. In the aforesaid factual background, the petitioner has approached this Court. 3. Learned counsel for the petitioner submitted that petitioner in fact was appointed on the post of Assistant Librarian which is evident from the order of appointment dated 11-6-1990. The petitioner was granted the benefit of first higher pay-scale w.e.f. 30-6-2004 by an order dated 11-11-2004. It is also urged that the post of Librarian has no promotional avenue, therefore, the order dated 31-12-2005 by which the post of Librarian has been deleted from the list identified static cadre is patently arbitrary and is unfair. It is further submitted that circular dated 19-7-1990 by which, the policy of financial up-gradation was introduced by the erstwhile M. P. Electricity Board extending the benefit of financial up-gradation is in consonance with the decision of the Supreme Court in the case of Council of Scientific and Industrial Research vs. K. G. S. Bhatt, (1989) 4 SCC 635 as well as State of Tripura and others vs. K. K. Roy, (2004) 9 SCC 65 . It is also urged that in light of aforesaid enunciation of law by the Supreme Court, an employee has the right to get second financial up-gradation in the absence of any promotional avenue. It is further stated that the impugned order dated 31-12-2005 is bad in law and is liable to be quashed and the petitioner is entitled to second higher pay-scale. It is further stated that the impugned order dated 31-12-2005 is bad in law and is liable to be quashed and the petitioner is entitled to second higher pay-scale. In support of his submissions, learned counsel for the petitioner has placed reliance on the order dated 24-7-2012 passed by a Bench of this Court in W. P. No. 11268/2011. 4. On the other hand, learned counsel for the respondents has submitted that questions relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and are within the exclusive discretion and jurisdiction of the employer. In support of the aforesaid submission, learned counsel for the respondent has placed reliance on the decision of Supreme Court in the case of P. U. Joshi vs. Accountant General Ahmedabad and others, (2003) 2 SCC 632. Since the post of Librarian has been deleted from the list of identified static cadre and, therefore, the petitioner has no right to claim second up-gradation of pay. 5. I have considered the respective submissions made by learned counsel for the parties. The petitioner was appointed on the post of Assistant Librarian, which is evident from the order dated 11-6-1990. On completion of requisite length of service, vide order dated 11-11-2004, the benefit of first higher pay-scale was extended to the petitioner w.e.f. 30-6-2004 and he was granted the pay-scale of Rs. 5600-10,400/- which was subsequently revised to Rs. 8000-15,350/-. The petitioner thereafter vide order dated 24-11-2004 was promoted to the post of Librarian. The post of Librarian carries the pay-scale of Rs. 8000-15,350/- and therefore, the petitioner did not get any financial benefit on his promotion. Admittedly, the post of Librarian has no promotional avenue. 6. Undoubtedly, the question relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and are within the exclusive discretion and jurisdiction of the employer. However, parameters of interference with policy decision are well settled. The wisdom and advisability of the policy is ordinarily not amenable to judicial review unless the policy is contrary to statutory or constitutional provision or is irrational or arbitrary. However, parameters of interference with policy decision are well settled. The wisdom and advisability of the policy is ordinarily not amenable to judicial review unless the policy is contrary to statutory or constitutional provision or is irrational or arbitrary. See: State of M. P. vs. Narmada Bachao Andolan, (2011) 7 SCC 639 . It is well settled in law that if an order is contrary to law laid down by the Court, it is liable to be quashed. See: Arvinder Singh Bains vs. State of Punjab and others, (2006) 6 SCC 673 . From the close scrutiny of para 2 of the order dated 31-12-2005, it is evident that all the posts mentioned therein have promotional avenues, except the post of Librarian. Therefore, the action of respondent in deleting the post of Librarian from the list of identified static cadre is manifestly arbitrary and irrational as the same would amount to depriving an employee of the benefit of up-gradation of pay which in turn would tantamount to contravention of the law laid down by the Supreme Court in the case of State of Tripura (supra), wherein, the Supreme Court has held that if an employee is appointed to a post with no promotional avenue, he is entitled to higher pay-scale. In the aforesaid case, the Supreme Court has deprecated the inaction on the part of the State Government to frame such a scheme. 7. In view of preceding analysis, the impugned order dated 31-12-2005 insofar as it deletes the post of Librarian from the list of identified static cadre is hereby quashed. The respondents are directed to consider the case of the petitioner for second financial up-gradation from June, 2008 in view of the circular dated 19-7-1990. Needless to state that in case petitioner is found entitled to second up-gradation of pay, the amount due to the petitioner shall be paid from June, 2008 along with interest at the rate of 6% from the date the amount becomes due to the petitioner till it is actually paid. The aforesaid exercise shall be carried out by the respondents within a period of four months from the date of production of certified copy of the order passed today. Accordingly, the writ petition is disposed of. Order accordingly.