Madhya Pradesh High Court
Shyam Sundar Soni vs The State Of Madhya Pradesh on 28 March, 2019
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THE HIGH COURT OF MADHYA PRADESH
JAGJIT SINGH Vs. THE STATE OF MADHYA PRADESH & OTHERS IN
W.P. No. 12488/2003
SHYAM SUNDER SONI Vs. THE STATE OF MADHYA PRADESH & OTHERS IN
W.P. No. 19247/2011
Jabalpur, 28.03.2019
Shri Rajesh Soni , learned counsel for the petitioner.
Shri Akhil Singh, learned Government Advocate for the
respondents/State.
Both these petitions are analogously heard and
decided by a common order. The facts are taken from W.P.
No.12488/2003.
This petition was originally filed as original application
before the Madhya Pradesh Administrative Tribunal and was
transferred to this Court after closure of the Tribunal and
registered as Writ Petition No.12488/2003.
The claim made in the petition is for grant of pay scale
of Rs.1150-1800 and payment of arrears of salary on the
ground that counter part of the post holders have been
given the aforesaid pay scale, whereas the petitioner has
been given lower pay scale only because he is said to have
been appointed in work charge contingency.
By order dated 09.05.2012, the petition of the
petitioner was allowed, holding the petitioner entitled to pay
scale of Rs.1150-1800 from the date of his appointment on
the said post and it was directed that all the arrears to be
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calculated and paid within three months from the date of
receipt of certified copy of the order.
This order was challenged by way of intra Court appeal
in W.A. No.118/2013. The Division Bench quashed the order
passed by the learned Single Judge and restored the petition
to its original file directing that the same be listed before the
Single Bench, with liberty to the petitioner to amend the writ
petition and to bring on record all the pleadings and
averments made by him in I.A. No.8096/2016 and I.A.
No.7847/2016. In this way the petitioner has come before
this Court.
Petitioner's case is that he was appointed as a daily
wage employee i.e. as a Hand Pump Mechanic on
16.06.1981 in Chhatarpur. Later on his services were
regularized w.e.f. 28.03.1988 as a contingency paid Hand
Pump Mechanic after due selection by the Selection
Committee. But the pay scale of Hand Pump Mechanic i.e.
scale of Rs.1150-1800 as already notified by the State
Government vide Notification dated 03.05.1990 as
applicable from 01.01.1986 was not given to him. According
to the petitioner, similarly situated Hand Pump Mechanics of
the department are being paid pay scale of Rs.1150-1800,
whereas he is being paid the pay scale of Rs.950-1530.
It is further pleaded that earlier the pay scale of
petitioner was also fixed in the pay scale of Rs.1150-1800.
However, the Executive Engineer, vide order dated
03.02.1999 (Annexure P/15) cancelled the same without
giving any opportunity of hearing. It is stated that petitioner
was not aware of this order and came to know about the fact
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in the year 2016, hence by way of amendment the relief of
quashing the order dated 03.02.1999 is also sought.
It is the case of petitioner that the benefit of pay
fixation is awarded to similarly situated employees namely
Jagdish Prasad Soni, Shankar Lal Soni, Hariprasad Soni, G.P.
Singh and Prakash Singh Kushwaha and also to the entire
Madhya Pradesh State except to the Jabalpur Division. He
has also placed reliance on the order passed in the case of
Ajay Singh Rathore and others Vs. State of M.P. [W.P.
No.4473/2009 (s)], which came to be upheld by the
Supreme Court. In view of the aforesaid facts, claim for grant
of pay scale of Rs.1150-1800 from the date of appointment
i.e. 29.02.1988 and arrears of salary with all consequential
benefit with 18% interest and to pay the entire amount
recovered from petitioner due to alleged wrong pay fixation
with 18% interest is made.
Shri Akhil Singh, learned Government Advocate on the
other hand has argued that the petitioner being appointed
as work charged employee in pay scale of Rs.950-1350 is
not entitled to pay scale of regular establishment i.e. 1150-
1800.
No other ground has been raised before me.
I have heard the learned counsel for the parties and
perused the record.
It is observed that petitioner's claim that he was
appointed on 16.06.1981 as Hand Pump Mechanic is not
disputed by the respondents. It is also evident from
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Annexure P/1 that the State Government vide circular dated
22.11.1988, directed that all such employees appointed on
daily wages prior to 01.01.1984 and has completed three
years or more service, shall be paid regular pay scale from
their date of appointment in the work charge. The relevant
circular is quoted herein under:
e/;izns'k 'kklu
dkfeZd] iz'kklfud lq/kkj ,oa izf'k{k.k foHkkx
¼osru vk;ksx izdks"B½
dzekad 344@797@1@osvkiz@88 Hkksiky] fnukad 22 uoEcj 1988
izfr]
'kklu ds leLr foHkkx]
v/;{k] jktLo e.My] e/;izns'k] Xokfy;j]
leLr foHkkxk/;{k]
leLr laHkkxk;qDr]
leLr ftyk/;{k]
e/;izns'k]
fo"k;%& fnukad 1-1-1984 ds iwoZ Hkjrh fd;s x;s nSfud osru Hkksxh
deZpkfj;ksa dks dk;Z Hkkfjr ,oa vkdfLedrk O;; ls osru ikus
okys deZpkfj;ksa dh LFkkiuk esa fu;qfDrA
lanHkZ%& bl foHkkx dk Kkiu dzekad 464&554@1@ovi@87 fnukad
4-12-87A
******
mDr lanfHkZr Kkiu }kjk fnukad 01-01-1984 ds iwoZ Hkjrh fd;s nSfud osru Hkksxh deZpkfj;ksa dks dk;ZHkkfjr ,ao vkdfLedrk O;; ls osru ikus okys deZpkfj;ksa dh LFkkiuk esa fu;qfDr fd;s tkus ds laca/k esa izfdz;k fu/kkZfjr dh xbZ gS ,ao fofHkUu 'krksZa dk mYys[k fd;k x;k gS dk;ZHkkfjr ,ao vkdfLedrk fuf/k ls osru ikus okys deZpkfj;ksa dh Hkjrh ds laca/k esa rFkk 5 iqujhf{kr osrueku fn;s tkus ds laca/k esa vko';d vkns'k lkekU; iz'kklu foHkkx ¼osru vk;ksx izdks"B½ ds Kkiu dzekad 192@1@osvkiz@84 fnukad 10-05-1984 }kjk izlkfjr fd;s x;s gS] ftuesa iqujhf{kr osrueku Lohd`r djus ds laca/k esa fofHkUu 'krksZa dk mYys[k gSA buesa ls ,d 'krZ ;g Hkh gS fd bl lsok esa deZpkfj;ksa dh Hkjrh izFke 3 lky rd dysDVj }kjk fuf'pr osru ,ao mlds i'pkr~ vLFkkbZ lnL; ekudj iqujhf{kr osrueku esa dh tk;sxhA 2@& nSfud osru Hkksxh deZpkfj;ksa dh fu;qfDr esa vk jgh dfBukbZ;ksa ,oa muds osru fu/kkZj.k esa mRiUu gks jgh folaxfr;ksa dks /;ku esa j[krs gq;s jkT; 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd fnukad 1-1-84 ds iwoZ nSfud osru ij fu;qDr ,sls deZpkfj;ksa ftUgksaus fnuakd 01-4-87 dks 3 o"kZ ;k mlls vf/kd dh lsok iwjh dj yh mUgsa dk;ZHkkfjr ,oa vkdfLedrk fuf/k ls osru ikus okys deZpkfj;ksa dh LFkkiuk esa fu;qDr gksus dh frfFk ls gh fu;fer osrueku fn;k tk;sA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj Since the petitioner has completed more than three years of service on 01.04.1987, he is also entitled to the benefit of the aforesaid circular.
In a bunch of writ petitions main being W.P. No.4473/2009 (s) [Ajay Singh Rathore Vs. State of M.P. and others], the co-ordinate Bench of the Indore High Court has partly allowed the writ petition and held as under:
"In the present case it has been admitted that the petitioners were appointed in the pay scale of Rs.975-1650 and the order passed by the M.P. State Administrative Tribunal in O.A. No.5/94 also reflects that the petitioners were enjoying the pay scale of Rs.975-1650 at the time of their 6 appointment and the action of the respondents in withdrawing the aforesaid pay scale was held to be bad in law. The petitioners by virtue of the order passed by the Tribunal were entitled for pay scale of Rs.975-1650. However, erroneously higher pay scale of Rs.1150-1800 was paid to the petitioner and w.e.f. 1/9/96 the pay scale of Rs.975-1650 has been revised to Rs.3500-5200 and the respondents have also admitted in the impugned order dated 11/5/09 that the petitioners are entitled for the aforesaid pay scale of Rs.3500- 5200 and, therefore, this Court is of the considered opinion that the petitioners are certainly entitled for the pay scale of Rs.3500- 5200 w.e.f. 1/1/96. So far as the excess amount received by the petitioners on account of wrong fixation is concerned, as the petitioners were not at fault in the matter, the question of recovering the same in the light of judgment delivered in the case of Sahibram (supra) does not arise.
Resultantly, pay fixation done by the respondents is upheld in the matter. However, the recovery ordered against the petitioners is quashed.
With the aforesaid, the writ petition stands partly allowed. No order as to costs."
This order was challenged by way of W.A. No.381/2010 by the petitioner and the Division Bench modified the order passed by the learned Single Judge and allowed the appeal as under:
"This appeal is directed against the order dated 30.07.2010 passed by the learned Single Judge in W.P. No.4473/2009.7
According to the appellants (writ petitioners), the entire observations made by the learned Single Judge are in their favour still the writ petition has been 'partly allowed' instead of ordering it to be 'allowed'.
Learned counsel for the appellants submits that as per the order passed by the learned Single Judge himself, the appellants-writ petitioners were entitled for revised pay-scale of Rs.3500-5200/-, in the circumstances, the observation that the pay- fixation was wrong and clearly erroneous.
Having gone through the entire order passed by the Writ Court, we are of the view that it has wrongly been mentioned in the order that the pay- fixation was wrong, which may be typographical error. Accordingly, we allow this appeal and modify the order passed by the learned Single Judge to the effect that the words "wrong pay-fixation"
mentioned in the operative paragraph as also "partly allowed" are deleted and instead of it, they be treated that "petitioner's pay was correctly fixed and the recovery was wrongly made" and instead of treating the writ petition to be partly allowed, it be treated as allowed.
With the aforesaid modification in the order passed by the learned Single Judge, this writ appeal stands allowed"
The order passed by the Division Bench was further affirmed by the Supreme Court vide order dated 27.01.2016 and the SLP filed by the respondents department was dismissed.8
In my considered opinion, the case of petitioner is no different than the case of Ajay Singh Rathore (supra). Hence, the petitions are allowed in the same terms. The order of recovery is quashed and the pay of the petitioner be fixed from the date of appointment. Petitioner is also entitled to all the arrears with interest @ 12%, should be calculated and paid within a period of 120 days.
A copy of this order be kept in the connected Writ Petition No.19247/2011.
(Nandita Dubey) Judge b Digitally signed by BHARTI GADGE Date: 2019.04.12 10:56:55 +05'30'