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2014 DIGILAW 481 (MP)

Jugal Kishore Singh v. State of M. P.

2014-04-29

A.M.KHANWILKAR, K.K.TRIVEDI

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Judgment: K.K. Trivedi, J. 1. This petition under Article 226 of the Constitution of India is filed challenging constitutional validity of Schedule-I of Madhya Pradesh Electrical Inspectorate (Gazetted) Service Recruitment Rules, 1988 wherein the pay scale of posts of Account Officer, Electricity Duty Officer and Audit Officer in Class-II category is provided to Rs. 1820-3300/- being arbitrary, discriminatory and a parity is claimed in the matter of grant of pay scale of Rs. 2200-4000/- as provided under the Madhya Pradesh Revision of Pay Rules, 1990. The petitioners have claimed following relief in the writ petition: (i) To call for the records from the respondent for kind perusal of this Hon'ble Court. 2 (ii) To struck off item Nos. 5, 6 and 7 of the Schedule I of Recruitment Rules, 1988 so far it provides the pay scale of 1820-3300 revised 2000-3500 being ultra vires to the Constitution by issuance of an appropriate writ and or order. (iii) To command the respondent to allow the petitioners the pay scale of 2200-4000 as provided under the Pay Rules, 1990 and further revised pay scale 8000-13500 from the date of its application and to pay all the arrears with interest at the rate of 24% per annum by issuance of an appropriate writ and or order. (iv) To command the respondent to continue to pay the revised pay scale to the petitioners 3 and 4, who are still in service per month regularly by issuance of any appropriate writ and or direction. (v) Any other reliefs which this Hon'ble Court may deem just and proper in the circumstances of the case be also granted in favour of the petitioners along with cost of this petition." The submission of the petitioners is that while prescribing the pay scale of Rs. 1820-3300/-, they were put at par with the persons holding the post of Assistant Engineer. However, when the Revision of Pay Rules, 1990 were framed, instead of giving the corresponding pay scale of Rs. 2200-4000/- to the persons like petitioners, a lesser pay scale of Rs. 2000-3500/- was given to them. Though similar prescription's made in respect of other Class-II gazetted posts but it is prescribed that those who are directly recruited on the said post through the Public Service Commission, will be given the pay scale of Rs. 2200-4000/-. 2200-4000/- to the persons like petitioners, a lesser pay scale of Rs. 2000-3500/- was given to them. Though similar prescription's made in respect of other Class-II gazetted posts but it is prescribed that those who are directly recruited on the said post through the Public Service Commission, will be given the pay scale of Rs. 2200-4000/-. According to the petitioners, such prescription made in the Schedule is thus violative of Articles 14 and 19 of the Constitution of India. 2. Rebutting the allegations made in the petition, return has been filed by the respondent stating that the Pay Commission has made the recommendations that those who were initially appointed in the pay scale of Rs. 1820-3300/-, they were to be given the pay scale of Rs. 2000-3500/-. However, those who were selected and appointed on direct recruitment basis through the Public Service Commission, were given the higher pay scale of Rs. 2200-4000/-. That being so, the posts, which are to be filled in 100% by direct recruitment only, were given the higher revised pay scale of Rs. 2200-4000/-. That being so, it is contended that the claim made by the petitioners is not justified. 3. Upon hearing of learned Counsel for the parties, we are of the considered opinion that the issue is no longer res integra inasmuch as similar claims were made in O.A. No. 736/1992, 687/1992, 640/1992 and 688/1992 before the M.P. State Administrative Tribunal and the Tribunal after considering various aspects, reached to the conclusion that there cannot be a discriminatory pay scale on one post only on account of source of recruitment. If the posts are to be filled in by direct recruitment as also promotion, the promotee cannot be given the lesser pay scale as it would be hit by discrimination as the promotee as well as direct recruitee both are discharging the same functions and similar duties. The matter traveled to the Apex Court against the said order dated 07.06.1993 in S.L.P. No. 14816/1993, 14773/1993 and 15986/1993 and after hearing, the Apex Court dismissed the said S.L.P.S. of the State Government vide order dated 28.10.1993 in the following manner: "We do not find any infirmity in the conclusion reached by the Tribunal even though the reference to Article 311 of the Constitution in the Tribunal's order is misplaced since the view taken by the Tribunal is supportable on the round of Article14. However, these SLPs need not be entertained for this reason alone and this clarification made by us is sufficient for the purpose. The SLPs are dismissed with these observations." 4. The same issue was again raised in O.A. No. 801/1998 before the M.P. State Administrative Tribunal, Bench at Indore, which came to be decided on 07.04.1999 and considering the very same aspect once again, the Tribunal held in paragraph 4 of the order as under: "4. The only point involved in this case, is that the applicant is not required to give any option to accept the revised scale of Rs. 2200-4000/- which she was given when she was promoted and had continued to draw uninterruptedly till she retired. Learned counsel for the applicant further contended that the discrimination is unconstitutional and, therefore, the applicant is entitled to the same scale from the date of her promotion. It is admitted that the scale of Rs. 2200-4000/- was applied to the District Woman & Child Welfare Officer from 1.1.1986. The applicant was promoted in the year 1987. The decision of the Government to give one scale of Rs. 2200-4000/- to the officers recruited directly through Public Service Commission and another lower scale of Rs. 2000-3500/- to the officers promoted, was based on no judicious assessment of their duties. The duties being just the similar, the pay-scales could not be fixed differently and accordingly, the same was treated as violative of equality, i.e. equal-pay for equal work and was, therefore, set-aside by the Tribunal." The order of the Tribunal was called in question before the Division Bench of this Court at Indore in W.P. No. 1735/1999 by the State Government and the said writ petition was also dismissed holding thus: "3. Having heard learned counsel for the parties and also gone through the impugned order, this petition in our judgment must fail. Firstly, the discrimination made under the order dated 27.8.1990 was artificial and violative of Article 14 of the Constitution of India. The normal rule is "equal pay for equal work". It hardly mattered that a person is appointed to a post on promotion or by direct recruitment." 5. In view of these findings, the persons like petitioners cannot be discriminated in the matter of grant of revised pay scale (Rs. The normal rule is "equal pay for equal work". It hardly mattered that a person is appointed to a post on promotion or by direct recruitment." 5. In view of these findings, the persons like petitioners cannot be discriminated in the matter of grant of revised pay scale (Rs. 2200-4000/-) merely on the basis of their sources of recruitment, specially when they were also discharging the similar duties as were assigned to those who were appointed on direct recruitment basis. 6. In fact the relief, as claimed in the writ petition, is not in appropriate manner as Schedule-I of the Rules of 1988 is called in question in this writ petition, saying it to be ultra vires Article 14 of the Constitution of India. Inasmuch as, prescription of pay scale to the post as indicated in Item No. 5, 6 and 7 of the said Schedule, is alleged. On an examination it is found that only the pre-revised pay scale of Rs. 1820-3300/- is mentioned against the pay scale prescribed in the aforesaid post shown in Item No. 5, 6 and 7 of Schedule-I of the Rules, therefore, the same cannot be said to be discriminatory in any manner as the similar pay scale is given to the other post as well. However, it is seen that while making the rules for revision of pay after accepting the recommendations of the Pay Commission, in the year 1990 the Schedules are appended to the Rules called M.P. Pay Revision Rules, 1990. In Schedule-I though the revised pay scale for the pay scale of Rs. 1820-3300 is shown to be Rs. 2000-3500/- but in Schedule II for Class II gazetted post while stating the very same pre-revised pay scale of Rs. 1820-3300/-, a higher revised pay scale of Rs. 2200-4000/- is prescribed with a condition that the same would be applicable to the post on which the recruitment is made 100% or partially by direct recruitment through the Public Service Commission. According to the law laid-down by the Tribunal, duly approved by this Court as also by the Apex Court, such a prescription is arbitrary. For, the source of recruitment cannot be made the basis for grant of different pay scales. According to the law laid-down by the Tribunal, duly approved by this Court as also by the Apex Court, such a prescription is arbitrary. For, the source of recruitment cannot be made the basis for grant of different pay scales. Therefore, in our considered opinion, only the said note and the condition appended to the Revision of Pay Rules, 1990 has to be declared as ultra vires and opposed to the provisions of Article 14 of the Constitution of India. We accordingly declare so. 7. As a result, the petition succeeds and is allowed. The condition prescribed in the Revision of Pay Rules, 1990 as against Item No. 7 of Schedule-II is declared as ultra vires and is struck down. As a consequence, the petitioners would also be entitled to grant of the revised pay scale of Rs. 2200-4000/- and any further revised pay scale according to such revision, irrespective of the fact whether they were directly recruited or promoted on the post on which the said revised pay scale was made applicable by the State Government. 8. Let the benefit accrued on account of such entitlement be calculated and the pay be revised accordingly and arrears be paid to the petitioners within three months from today, failing which the petitioners will be entitled to interest @12% p.a. for the delayed payment thereafter. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.