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Madhya Pradesh High Court · body

2014 DIGILAW 1534 (MP)

Babulal Pachori v. State of M. P.

2014-11-26

SUJOY PAUL

body2014
ORDER 1. The petitioners are retired time-keepers. They have invoked the jurisdiction of this Court under Article 226 of the Constitution to challenge the order dated 22.4.2010 (Annexure P-1). It is further prayed that a direction be issued to the respondents not to make any recovery from the pension/retiral dues of the petitioner. 2. The facts giving rise to this petition are that the petitioners were working as time-keeper. Their initial pay-scale was Rs.445-635. A petition was filed before this Court (M.P. No.3885/1986). The said miscellaneous petition was transferred to M.P. State Administrative Tribunal (hereinafter called as “Tribunal”) and was re-registered as TA No.993/1988 (L.N. Upadhyay and others v. State of M.P. and others). Shri Chaturvedi, learned senior counsel submits that the present petitioners also filed a matter, which was registered as T.A. No.995/1988 (P.R.Shinde and 97 others v. State of M.P. and others). The Tribuan passed its basic order in T.A. No.993/1988 on 6.11.1998 (Annexure P-3). In petitioners’ case, i.e., T.A. No.995/1988, the Tribunal merely followed the basic order passed in T.A. No. 993/1988. By taking this Court to the findings of the Tribunal, it is submitted that the Tribunal made it clear that the petitioners are entitled to get the pay-scale of Rs.515-800, the scale which was attached to the post of Amin. 3. Learned senior counsel heavily relied on consequential order passed in the name of the Governor. By relying on the order dated 12.7.1999 (Annexure P-5), it is submitted that a conscious decision was taken by Government not to prefer any appeal against the orders aforesaid of the Tribunal. Thereafter, by order dated 24.10.1999, the pay-scale of Rs.515-800 was directed to be released in favour of the present petitioners. It is submitted that after having taken a conscious decision not to prefer any appeal, the Government is bound by the principle of “estoppal” and cannot act contrary to their decision aforesaid. It is submitted that the respondents have committed an error in making an effort to reduce the pay-scale of the petitioner from Rs.515-800 to Rs.445-635. To elaborate, Shri Chaturvedi submits that the pay-scale of Rs.445-635 was revised as Rs.2750-4400 whereas the pay-scale of Rs.515-800 was revised as Rs.3050-4590. It is submitted that the petitioners retired on attaining the age of superannuation sometime in the year 2007. To elaborate, Shri Chaturvedi submits that the pay-scale of Rs.445-635 was revised as Rs.2750-4400 whereas the pay-scale of Rs.515-800 was revised as Rs.3050-4590. It is submitted that the petitioners retired on attaining the age of superannuation sometime in the year 2007. They received their retiral dues/pension on the basis of last pay drawn in the scale of Rs.515-800, revised as Rs.3050-4590. The respondents cannot reduce the said pension. He submits that pension and retiral dues are not bounty. They are outcome of long sincere and efficient services rendered to the department. Pension is deferred payment of salary and, therefore, it is a property under Article 300A of the Constitution of India. 4. Learned counsel for the petitioner submits that the reduction of pay-scale after retirement is impermissible. It cannot be done either under rule 52 of M.P. Civil Services (Pension) Rules or otherwise. Lastly, it is submitted that in view of 2007(3) MPLJ 69 (State of M.P. and another v. Manoj Kumar Sharma and another); (2006)9 SCC 630 (U.P.Raghvendra Acharya and others v. State of Karnataka and others), and, ILR [2013] M.P. 2784 (A.L.Thakur and others v. State of M.P.), the action is arbitrary and capricious in nature. 5. Per Contra, Smt. Nidhi Patankar, learned Government Advocate supported the order, Annexure P-1. She submits that the reliance placed on government orders, Annexures P-5 and P-6 are now misconceived. The basic order of the Tribunal passed in T.A. No.993/1988 and 995/1988 is set aside by Division Bench of this Court in Writ Petition No.945/2001 on 2.2.2006. She drew the attention of this Court on another judgment of this Court passed in Writ Petition No.4676/2007 (Kiran Rangnekar and others v. State of M.P. and others). She submits that this Court after taking note of the earlier judgments on the point opined that the Finance Department’s decision regarding grant of pay-scale of Rs.445-635/2750-4400 to the petitioners is justifiable and, therefore, the petitioners have no legal, vested, fundamental or constitutional right to continue to enjoy the benefits based on the pay-scale of Rs.3050-4590. 6. I have bestowed my anxious consideration on the rival contentions advanced at the bar and perused the record. 7. Shri Chaturvedi, learned senior counsel has strenuously contended that after passing the order dated 12.7.1999 and 24.10.1999, it was not open to the department to reduce the pay-scale and consequential pensionary benefits. 8. 6. I have bestowed my anxious consideration on the rival contentions advanced at the bar and perused the record. 7. Shri Chaturvedi, learned senior counsel has strenuously contended that after passing the order dated 12.7.1999 and 24.10.1999, it was not open to the department to reduce the pay-scale and consequential pensionary benefits. 8. A perusal of record shows that although such decisions, Annexures P-5 and P-6 were issued, the fact remains that the Government later on filed a writ petition before this Court challenging the aforesaid basic order of the Tribunal dated 6.11.1998. The Division Bench of this Court in Writ Petition No.945/2001 set aside the basic order of the Tribunal dated 2.2.2006. The petitioners were party to the judgment, which was set aside by this Court. It is settled in law that no estoppel operates against law. Once the basic order of the Tribunal is set aside by the Division Bench, the orders dated 12.7.1999 and 24.10.1999, Annexures P-5 and P-6 respectively, have lost its complete shine and enforceability. 9. The writ Court in WP No.4676/2007 considered the entire events and also considered the Division Bench judgment passed in Writ Petition No.945/2001. After considering all the judgments, this Court opined as under : “47. In the present case, the matter relating to grant of higher pay-scale to time-keepers has been exhaustively dealt with by the finance department and thereafter, by the State Government, and therefore, the decision of the State Government does not warrant any interference. The State Government has granted a pay scale of Rs.445-635/- to the petitioners and the corresponding pay-scale of the time-keepers is Rs.2750-4400/-. The petitioners are only entitled for pay-scale of Rs.2750-4400/- as has been held by the State Government. The State Government by its impugned order has also been directed recovery from time-keepers and other allied categories, however, the order to the extent of recovery has been ordered deserves consideration by this Court. The petitioners were granted a higher pay-scale by the State Government based upon certain judgments delivered from time to time and the matter was remanded back by an order passed by this Court dated 2.2.2006 in Writ Petition No.1975/2001. The petitioners were granted a higher pay-scale by the State Government based upon certain judgments delivered from time to time and the matter was remanded back by an order passed by this Court dated 2.2.2006 in Writ Petition No.1975/2001. The higher pay-scale which was granted to the petitioners was by virtue of the certain orders passed by the Tribunal and by this Court and, therefore, the petitioners cannot be subjected to recovery as they are not at fault in receiving higher pay-scale. Resultantly, recovery ordered by the State Government is hereby quashed, however, it is clarified that the petitioners shall only be entitled for pay-scale of Rs.445-635/- and revised pay-scale of Rs.2750-4400/-. The respondent State shall also be free to fix the petitioners notionally in the pay scale of Rs.445-635/- with retrospective effect without effecting any recovery against the petitioners.” (Emphasis supplied) 10. Learned senior counsel relied on the order of Principal Seat in A.L.Thakur (supra), a microscopic reading of this order shows that the order passed by the Division Bench in Writ Petition No.945/2001 was not brought to the notice of the Principal Seat. Thus, the Principal Seat proceeded on the basis of basic judgment of the Tribunal and the order passed in case of Laxminarayan Upadhyay v. State of M.P. and others. Needless to mention that once Division Bench judgment is passed, whereby basic order of Tribunal is set aside, the Division Bench judgment is binding on this Court. 11. On the basis of aforesaid analysis, it is crystal clear that as per the Division Bench judgment in Writ Petition No.945/2001, the petitioners are not entitled to continue in the pay-scale of Rs.515-800/3050-4590. Even if the said pay-scale was granted to them, at best the respondents can be restrained from recovering the excess payment. Petitioners have no legal, vested or constitutional right to continue in the pay-scale of Rs.3050-4590. If this Court decides otherwise, it will be contrary to the order passed in Writ Petition No.4676/2007 and Division Bench order dated 2.2.2006 passed in Writ Petition No.945/2001. 12. So far the judgments on which reliance is placed by Shri Chaturvedi are concerned, it cannot be doubted that the pension is not a bounty and is an outcome of long and sincere services rendered to the department. 12. So far the judgments on which reliance is placed by Shri Chaturvedi are concerned, it cannot be doubted that the pension is not a bounty and is an outcome of long and sincere services rendered to the department. However, the apex Court in catena of judgments has held that pension and gratuity are property under Article 300A of the Constitution and it cannot be taken away without recourse of law. 13. The question is whether the petitioners have a legal right to continue in the pay-scale of Rs.3050-4590. In the opinion of this Court, once Division Bench order dated 2.2.2006 is passed followed by the order passed in Writ Petition No.4676/2007, the petitioners do not have the said right to continue in the same pay-scale. The petitioners are only entitled for the protection that no recovery be made from them. Thus, benefit taken away from petitioners is as per the judgments passed by this Court dated 2.2.2006 and in Writ Petition No.4676/2007. This action of respondents cannot be treated as contrary to law. 14. On the basis of aforesaid analysis, in the opinion of this Court, the said judgments have no application in the facts and circumstances of the present case. In U.P. Raghvendra Acharya (supra), the respondents intended to reduce the retiral dues by way of issuing subordinate/delegated legislation with retrospective effect. In the peculiar facts of that case, the apex Court disapproved the same. In Manoj Kumar Sharma (supra), this Court disapproved the action of the respondents based on a letter issued by the Commissioner, Directorate of Treasury and Accounts because it was contrary to the order passed by the Governor. The factual backdrop of the said case is totally different. In the present case, although two orders, Annexures P-5 and P-6, were issued in the name of Governor, the said orders cannot be implemented in view of setting aside of the basic order of the Tribunal. At the cost of repetition, in my opinion, the judgment of Principal Seat in A.L.Thakur (supra) is of no assistance to the petitioners because before the Principal Seat it was not informed to the Bench that the basic order of the Tribunal passed in T.A. No.993/1988 stood set aside by the Division Bench on 2.2.2006. Thus, these judgments are clearly distinguishable. 15. Thus, these judgments are clearly distinguishable. 15. In the opinion of this Court, the question whether rule 52 of M.P. Civil Services (Pension) Rules is applicable or not, is not relevant. Once the order of the Tribunal is set aside, which became the reason for grant of pay scale, the right to continue in the scale of Rs.3050-4590/- comes to an end. There is no need of any enabling provision for undertaking said exercise. The logical corollary is that petitioners became entitled to enjoy scale of Rs.2750-4400/- only. 16. As analyzed above, the petitioners are only entitled for a protection that no recovery can be made from their pensionary benefits. It is made clear that the petitioners are not entitled for protection of pension on the basis of pay-scale of Rs.3050-4590, which was granted to them pursuant to the order passed by the Tribunal, which stood set aside by the Division Bench of this Court. 17. Petition is partly allowed to the extent indicated above. No cost. .............