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Madhya Pradesh High Court · body

2015 DIGILAW 885 (MP)

Praveen Shah v. State of M. P.

2015-08-24

S.C.SHARMA

body2015
ORDER : S.C. Sharma, J. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 3200/2015 are narrated hereunder. The petitioner before this Court, Member Judicial, M.P. Commercial Tax Appellate Board, has filed this present writ petition being aggrieved by the order dated 5-8-2015 and 8-5-2015 passed by the Registrar, Appellate Board by which his pay has been reduced and recovery has been ordered. 2. Facts of the case reveal that the petitioner was appointed as Civil Judge in the year 1979 and was promoted as Additional District Judge in July, 1992. He was later on posted as District and Sessions Judge and while he was working as District and Sessions Judge, he was appointed as Member Judicial in the M.P. Commercial Tax Appellate Board. The petitioner while serving the M.P. Commercial Tax Appellate Board has attained the age of superannuation on 30-6-2011. The petitioner while he was sent on deputation was granted the same pay scale and allowances by the respondents, however, to the utter surprise of the petitioner, the respondents have issued the impugned order directing recovery against the petitioner. Petitioner's grievance is that by no stretch of imagination, his pay could have been reduced by the respondents in the manner and method it has been done and by virtue of sub-rule (5) of Rule 4 of the M. P. VAT Rules, 2006 he is entitled to draw monthly salary and allowances payable to him as a Member of Higher Judicial Services minus pension. 3. On the other hand, a detailed and exhaustive reply has been filed on behalf of the respondent State and the respondents have admitted appointment of the petitioner as Member of M.P. Commercial Tax Appellate Board by order Dt. 10-9-2010. The respondents have further stated that the petitioner has attained the age of superannuation on 30-6-2011 and at the time of retirement he was eligible for salary with DA @ 51% and as per Rule 4(5) of the VAT Rules he is only eligible for the monthly salary and allowances payable to him at the time of superannuation minus monthly pension. Respondents have stated that the order passed by them directing recovery does not warrant any interference. 4. Respondents have stated that the order passed by them directing recovery does not warrant any interference. 4. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties. 5. In the present case, the petitioner was undisputedly a Member of Higher Judicial Services. By order Dt. 7-10-2014 he was appointed as a Member under the M.P. Commercial Tax Board. The appointment order reads as under:- 6. The appointment order makes it very clear that the petitioner shall be entitled for pay and allowances which he was drawing as Higher Judicial Officer. 7. The question involved in this case is whether the petitioner is entitled for 50% of the DA or the DA which he was drawing as Higher Judicial Officer pursuant to his retirement. 8. Sub-rule (5) of Rule 4 of the M. P. VAT Rules reads as under: "(5) A member of the Board who is on deputation from the Madhya Pradesh Higher Judicial Service shall draw monthly salary and allowances payable to him as a member of that Service: Provided that on the date of superannuation in the parent service, the member shall cease to be member of his parent service, but shall continue as member of the Board: Provided further that if the member is a retired member of the Madhya Pradesh Higher Judicial Service, he shall draw monthly salary and allowances payable to him at the time of superannuation less monthly pension being paid to him." 9. The aforesaid statutory provision of law makes it very clear that a Member of the Board who is on deputation from M.P. Higher Judicial Service shall draw monthly salary and allowances payable to him as a member of that service. The proviso also deals with retired officer, who after retirement, is appointed as Member of the Board. 10. In the present case, the petitioner was paid salary and allowances at the same rate which he was drawing as judicial officer, however, he has attained superannuation while serving as Member and therefore, he is certainly entitled, keeping in view the aforesaid statutory provision of law, to receive monthly salary pay and allowances, at the same rate which he was receiving earlier, less monthly pension being paid to him. 11. 11. M.P. Judicial Service Pay Revision, Pension and Other Retirement Benefits Rules, 2003 deals with Dearness Allowances and Rule 9 of the aforesaid Rules, reads as under: "9. Dearness Allowance.- The Judicial Officers shall be allowed Dearness Allowance from 1st July, 1996 at the rates as applicable to the Central Government Employees." 12. The aforesaid statutory provision of law provides that judicial officers shall be entitled to Dearness Allowance at the rates applicable to the Central Government Employees and the petitioner was paid DA paid at the rates as applicable to the Central Government Employees. 13. Not only this, this Court in the case of Satish Shrivastava Vs. State of M.P. and Another, (2013) 3 MPLJ 691 in paragraphs 9 to 12 has held as under: "9. Now the question would be whether the petitioner is entitled to 50% DA or not as was given to the Central Government employees. If the Rules are seen, everywhere it is said that the DA would be applicable as is applicable to the Central Government employees. Rule 9 of Rules, 2003, categorically deals with such extension of benefit to the Judicial Officers in unequivocal words. The Judicial Officers shall be allowed DA from 1st July, 1996 at the rate as applicable to the Central Government employees. It has already been held by this Court that the said Rules are applicable to the Members of the Labour Judiciary and since this would be applicable to the Members of the Labour Judiciary, the benefit is to be extended to the petitioner as well. In the W.A. No. 784/2009, the Division Bench of this Court has held on 21-10-2009 that the Members of the Labour Judiciary are entitled to the same pay scale as is made applicable to the District Judges of the State Judiciary. The Division Bench has categorically held in paragraphs 6 and 7, which reads thus:- "6. Accordingly, we are inclined to hold that the case of the present appellant is squarely covered by the judgment passed by the Division Bench of this Court in case of Satish Shrivastava (supra). In view of the aforesaid, we are inclined to allow the present writ appeal and direct the State Govt. Accordingly, we are inclined to hold that the case of the present appellant is squarely covered by the judgment passed by the Division Bench of this Court in case of Satish Shrivastava (supra). In view of the aforesaid, we are inclined to allow the present writ appeal and direct the State Govt. to fix the revised pension of the present appellant with effect from 1-7-1996 in terms to Rule 11-A(2) of M.P. Judicial Service Pay Revision, Pension and Other Retirement Benefit Rules, 2003 along with arrears which will be calculated and paid within a period of three months from the date the certified copy of this order is submitted by the appellant to the respondents. 7. However, before parting we would like to further mention that when the Division Bench of this Court has already taken a view that the Presiding Officers and member Judge of Industrial Court are entitled to the same pay scale as that of a District Judge and the members of the lower labour judiciary are entitled to the pay scale equivalent to that of a Civil Judge then the same should be taken note of by the respondents for conferral of the benefit to the officers belonging to the labour judiciary so that they are not forced to approach the Courts for their rights which has already been adjudicated upon by this Court." 10. It is further pointed out that since certain orders issued by this Court were not being complied with, the benefit was not being extended, the contempt case has been filed before the Division Bench of this Court by some of the similarly placed employees in which a very detailed order is passed by the Division Bench of this Court, again reiterating the similar provisions as has been referred to hereinabove and it has been held that the Presiding Officer and Member of the Industrial Court are entitled to the same pay scale as that of the District Judges of the State Judiciary and this has to be conferred on them by the State Government. It will not be out of place to mention here that even after a judicial pronouncement of such claim by this Court, which has been upheld up to such final stage of filing SLP in the Apex Court, the respondents are insisting on the same stand which has been negatived by all the Courts. It will not be out of place to mention here that even after a judicial pronouncement of such claim by this Court, which has been upheld up to such final stage of filing SLP in the Apex Court, the respondents are insisting on the same stand which has been negatived by all the Courts. It is really unfortunate, if such a conduct of the respondents is seriously viewed. 11. In view of the discussion hereinabove, the writ petition is allowed. The order of recovery as directed against the petitioner vide PPO dated 28th June, 2011 (Annexure P/17) amounting to Rs. 77,321/- (Rs. Seventy Seven Thousand Three Hundred Twenty One) is hereby quashed. The respondents are directed to fix the salary of the petitioner in accordance to the provisions of Fundamental Rule 22(D) in appropriate manner w.e.f. 28-8-2003 and to restore the payment of DA as per notification and DA applicable to the Central Government employees in terms of the Rules 9 and 12 of Rules, 2003. After revising the salary in the appropriate manner, the arrears be paid to the petitioner w.e.f. 1-4-2004 and pension of the petitioner be calculated accordingly and fresh PPO be issued to the petitioner within a period of two months from the date of receipt of certified copy of the order passed today. If any amount is due to be paid as arrears to the petitioner, the same be paid within the aforesaid period. 12. The writ petition is allowed to the extent indicated hereinabove. However, in the facts and circumstances of the case, there shall be no order as to costs." 14. In the aforesaid case, in almost similar circumstances, where DA was paid at par with Central Government Employees, a recovery was ordered and the same has been quashed by the Principal Seat of this Court. 15. The Apex Court in the case of Grid Corporation of Orissa and Others Vs. Rasananda Das, AIR 2003 SC 4599 in paragraph Nos. 7 to 9 has held as under: "7. By the order dated 13-8-1995, passed by this Court in Civil Appeal Nos. 15. The Apex Court in the case of Grid Corporation of Orissa and Others Vs. Rasananda Das, AIR 2003 SC 4599 in paragraph Nos. 7 to 9 has held as under: "7. By the order dated 13-8-1995, passed by this Court in Civil Appeal Nos. 348 and 349 of 1974 this Court declared that "the workmen working in the work-charged establishments of the Hirakund Project from before 1-4-1960 are entitled to the same scales of pay and other conditions of service as before as if they were employees of the work-charged establishments of the Central Public Works Department". It is not disputed that the age of superannuation in case of the workmen working in the work-charged establishments of the Hirakund Project prior to 1-4-1960 was 60 years. In view of the declaration made by this Court, undoubtedly, such workmen were entitled to retire at the age of 60 years after attaining the age of superannuation. When one such employee of the Board was asked to retire at the age of 58 years, which was the age of superannuation applicable to the employees of the Board, he filed a writ petition O.J.C. No. 4507 of 1992 in the High Court. The writ petition was allowed by the High Court on 16-12-1992 observing thus: '4. Having heard learned counsel for both parties at length, we find that there is no scope for a dispute that the petitioner is one of the 1200 workmen, who was originally engaged in the Central Government as a work-charged employee and whose services were transferred to the State Government, as a consequence of taking over the Hirakund Dam Project by the State Government. It is also true that the petitioner's services were placed under the Electricity Board, where he had been continuing. The Electricity Board after it was constituted under the Electricity (Supply) Act, 1948 has framed its own regulation governing the conditions of services of its employees relying on which Mr. Patch appearing for the opp. parties justifies the impugned order. It is also true that the petitioner's services were placed under the Electricity Board, where he had been continuing. The Electricity Board after it was constituted under the Electricity (Supply) Act, 1948 has framed its own regulation governing the conditions of services of its employees relying on which Mr. Patch appearing for the opp. parties justifies the impugned order. But section 60 of the aforesaid Act provides among other things that- 'All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board.' Thus the service conditions of the petitioner are to be protected and cannot be changed to his detriment by virtue of the regulation of the Board. 5. We, therefore, conclude that the petitioner is entitled to continue till the age of 60 years and cannot be terminated at the age of 58 years, even though the Board's Regulation prescribes the age of 58 years to be the age of superannuation, this is so because of the statutory protection given to the employees under section 60 of the Act and the Board's regulation to this extent must be held to be not applicable to the petitioner and similarly placed employees." 8. We are informed that the special leave petition filed against this order in Court was also dismissed. Thus, the issue that the employees, who were working in the work-charged establishments of the Hirakund Project prior to 1-4-1960 and when finally they became the employees of the Board, could be retired only after their attaining the age of superannuation on completion of 60 years. The appellants by the Office Order No. AW. LW. - 11.65/69/8398 dated 22-7-1969 for the various reasons stated therein gave better pay scales to the employees, who came from the Hirakund Project. These pay scales were given without any reservation or subject to any condition and also knowing fully well that such employees were entitled to retire at the age of 60 years and not at the age of 58 years. These pay scales were given without any reservation or subject to any condition and also knowing fully well that such employees were entitled to retire at the age of 60 years and not at the age of 58 years. Apart from the order of this Court passed in the aforementioned appeals, the High Court in the impugned order, referring to section 60 of the Electricity (Supply) Act, 1948, pointed out to the order passed in O.J.C. No. 4507 of 1992 that the service conditions of such employees are to be protected and cannot be changed to their disadvantage or detriment of their interest by virtue of the regulation of the Board. As already stated above, the special leave petition against the said order was dismissed by this Court. The High Court was right in taking the view that although the service conditions of such employees could not be changed to their disadvantage by reducing their scales of pay or taking away any other service benefits, it cannot be understood as depriving of the benefit of higher scale of pay to them as given to other employees of the same employer. The High Court in the said order also observed that there was a bar to change the service conditions of such employees to their detriment and there was no bar to offer such employees better prospects. 9. We may add that there was protection of service conditions of such employees but there was no prohibition from improving them or giving better pay scales. The appellants having given better pay scales, as early in 1969, cannot reduce the pay scales when it comes to granting pensionary/retiral benefits for the period between the age of 58 to 60 years. The argument advanced in this regard that although the employees are entitled to continue in service up to the age of 60 years but during the period of 58 to 60 years they should not be governed by the pay scale applicable to regular employees of the Board cannot be accepted. When the employees continue to work up to the retirement age of 60 years their pay scales cannot be reduced for the period between 58 to 60 years there is no question of taking any double advantage as sought to be contended on behalf of the appellants in the light of the undisputed facts. When the employees continue to work up to the retirement age of 60 years their pay scales cannot be reduced for the period between 58 to 60 years there is no question of taking any double advantage as sought to be contended on behalf of the appellants in the light of the undisputed facts. Better pay scales were given without any reservation and even at the time of giving these pay scales it was not mentioned that after the age of 58 years they should be governed by the regular pay scales applicable to the employees of the Board. There cannot be two types of pay scales one for the purpose of continuing in service up to the age of retirement and the other for the period between 58 to 60 years. It must be kept in mind that pension is not a bounty but it is hard-earned benefit for long service, which cannot be taken away. 10. Looking to the facts found and the reasons recorded by the High Court in the impugned orders we cannot find fault with them. These appeals do not have any merit. Consequently they are dismissed with no order as to costs." 16. The aforesaid judgment makes it very clear that conditions of service and alteration of service conditions cannot be done to the disadvantage of the employee by reducing their pay scale or withdrawing any service benefits. 17. In the present case, the respondents are withdrawing service benefits (pay and allowances) while the petitioner is serving as Member of the Board. 18. In the light of the aforesaid discussions, the impugned order dated 5-5-2015 passed by the respondents and the consequential order of recovery Dt. 8-5-2015 are hereby set aside. The Writ Petition is allowed. The petitioner shall be entitled for salary and allowances minus (-) pension which he was drawing prior to issuance of the aforesaid orders. The amount recovered, if any, be refunded within a period of 60 days from the date of receipt of certified copy of this order. The Writ Petition is allowed. The other connected Writ Petition also stands allowed with similar directions. A copy of this order be placed in the record of connected Writ Petition i.e., W.P. No. 3626/2015. No order as to costs.