Madhya Pradesh High Court
Chandra Shekhar Sharma vs The State Of Madhya Pradesh on 20 September, 2012
Author: Keshav Kumar Trivedi
Bench: Keshav Kumar Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.161/2012
Chandra Shekhar Sharma
-Versus-
The State of Madhya Pradesh
PRESENT :
Hon'ble Shri Justice Keshav Kumar Trivedi.
Shri Rakesh Shroti, Advocate and Shri S.P.Rai,
learned counsel for the petitioner.
Shri S.M.Lal, learned Government Advocate for
respondents.
ORDER
( 20.09.2012) The grievance of the petitioner in this writ petition is that though as per the rules which were in vogue at the relevant time there was no bar that the petitioner will not get the full salary as prescribed under the rules, on account of his appointment as a member in the M.P Electricity Regulatory Commission (hereinafter 'Commission' for short) yet such a claim made by the petitioner has been rejected by order dated 4th August 2012, therefore, he is required to file this writ petition.
2. In short the claim of the petitioner is that under the provisions of Electricity Act, 2003 (hereinafter referred to as Act) and the rules made thereunder, the petitioner was appointed on the post of member of the aforesaid Commission vide order dated 27/06/2008. The rules have been made prescribing salary and other benefits to the 2 Chairman and Member of the said Commission, known as M.P Electricity Regulatory Commission (Salary Allowances and other Service Condition of the Chairman and Members) Rules, 2000 (hereinafter referred to as Rules ) in exercise of powers conferred by sub section 1 of Section 57 read with sub section 2 of Section 19 of Electricity Regulatory Commission Act, 1998 by the State Government. The rule 3 of the Rules prescribes that pay allowances of the Chairman and Members shall be as enumerated in the said rules. The proviso is made prescribing that if a Chairman or a Member is retired Judge of the High Court or has retired from service of Central Government or State Government and is receiving pension, he will get the salary as the member, minus the amount equivalent to the pension or service gratuity as the case may be. It is contended that since the petitioner was not an officer of the Central Government or the State Government, said proviso was not applicable in his case and he was entitled to get the salary as prescribed in Rule 3 of Rules without any deduction of pension. It is contended that amendment in the aforesaid rule was made only on 09/11/2009 substituting the provisions of Rule 3 of the Rules, and including the officers of the public undertakings or autonomous bodies of Central Government as also the State Government including the State Electricity Board. Since this amendment was made after the appointment of petitioner, the amended provision was not to be made applicable for the simple reason that under the M.P Vidyut Sudhar Adhiniam, 2000 (hereinafter referred to as Act, 2000) specific condition is mentioned in Section 6 restricting any such change of service conditions after 3 the appointment. It is contended that because of such a provision of law, merely because the amendment was made in the Rules by the executive, the right accrue to the petitioner was not to be taken away. However, such a claim of the petitioner is denied, therefore, this writ petition is required to be filed.
3. On receipt of notice of writ petition a return has been filed by the respondents and it is contended that in terms of the provisions of the Rules, since an amendment was made, pay of the petitioner was fixed minus pension received by him. In view of this, the claim made by the petitioner was not to be granted and rightfully his representation was rejected by the impugned order. It is contended that since the petitioner was paid the salary in accordance to the Rules, no illegality is committed by the respondents and the writ petition is liable to be dismissed.
4. Heard learned counsel for parties at length and perused the record.
5. The only controversy involved is whether a change made in the Rules with prospective effect, with respect to entitlement of pay minus pension would be applicable in the case of the petitioner or not and whether there is restriction put by the law making any change in the service condition of the petitioner or not. The Rules prescribing the salary as were available on the date when the appointment of petitioner was made are required to be seen. Rule 3 read thus:-
43. Pay and Allowances of Chairman and Members (1) The Chairman shall receive pay of Rs.26,000/- (fixed) per mensem and the members shall receive a pay in the scale of Rs.24,050-650-26,000/- per mensem;
Provided that in the case of an appointment as Chairman or a Member, of person who has retired as a Judge of High Court or who has retired from service under the Central Government or a State Government and who is in receipt of or has received or has become entitled to receive any retirement benefits by way of pension and/or gratuity or other forms of retirement benefits, the pay shall be reduced by the gross amount of pension equivalent of service gratuity if any but excluding pension equivalent or retirement gratuity, drawn or to be drawn by him.
(2) The Chairman or Members shall receive such Dearness Allowance as is admissible respectively to a High Court Judge and Officers of the Indian Administration Service of the corresponding grade in the State.
(3) The Chairman shall be entitled to receive city compensatory allowance and other allowances as are admissible to High Court Judge. The Members shall be entitled to City Compensatory Allowance as is admissible to the Officers of Indian Administrative Service of the corresponding grade in the State.
6. The proviso of the Rules is restricted to the Central Government or State Government Officers and to the High Court Judges. It is not made applicable for those who have worked in the autonomous bodies or public undertakings or semi government organizations of the State. If the interpretation of the same was to be made that the very same provision was applicable for such officers of autonomous bodies also, there was no need of making any amendment in the Rules as was done on 5 09/11/2009. The notification of amendment is reproduced for the purposes of this interpretation:-
GOVERNMENT OF MADHYA PRADESH ENERGY DEPARTMENT NOTIFICATION No.F3-20/1998/XIII in the exercise of powers conferred by section 180 read with sub section (2) of section 89 of the Electricty Act, 2003 (No.36 of 2003), the State Government, hereby makes the following further amendments in the Madhya Pradesh Electricity Regulatory Commission (Salary, Allowances and other Service Conditions of the Chairman and Members) Rules, 2000, namely:-
AMENDMENT In Rule 3 for sub rule (1) the following sub-rule shall be substituted, namely and the members shall receive a pay in the pay band of Rs.75,500/--(3 percent annual increment)-80,000 per mensem from 1st January, 2006 as per 6th Pay Commission Recommendations:
Provided that in case of an appointment as Chairman or a Member, of a person who has retired as a Judge of a High Court or who has retired or taken voluntary retirement from service under the Central Government or a State Government, or public undertaking or autonomous bodies of Central Government like National Thermal Power Corporation, Bharat Heavy Electricals Limited, National Hydel Power Development Corporation or of State Government like Madhya Pradesh State Electricity Board or its successor companies or equivalent organization and who is in receipt of or has received or has become entitled to receive any retirement benefits by way of pension and/or gratuity or other form of retirement benefits, the pay shall be reduced by the 6 gross amount of pension equivalent of service gratuity, if any"
(2) Throughout the rules, the words"in the State" wherever they occur, shall be omitted.
By order and in the name of the Governor of the Madhya Pradesh
7. The proviso added by the amendment includes the Central Government or State Government Officers as also the officers of public undertaking or autonomous bodies of Central Government like National Thermal Power Corporation, Bharat Heavy Electricals Ltd., National Hydel Power Development Corporation as also the Public Undertaking or Autonomous Bodies of the State Government, like Madhya Pradesh State Electricity Board or its successor companies or equivalent organizations. This makes it clear that earlier in the Rules such officers of the undertaking or autonomous bodies were not included otherwise there was no question of making any amendment in the Rule 3 of the Rules. The Rule is made prospective as nothing is said about this as to from which date the amended rule has come into force.
8. Now this left this Court to examine whether the terms and conditions of the petitioner, as were available on the date of appointment on 27/06/2008 could be altered to his detriment. The provisions of Section 6 of the Act, 2000 governs the term of office and condition of service etc. of members which read thus:-
6.Term of office, conditions of service etc.of members:(1) Every member shall hold 7 office including Chairperson, for a term of five years from the date on which he enters upon his office or until the age of sixty five years, whichever is earlier and shall not be eligible for re-appointment as Chairperson or Member at any time after the expiry of the term of appointment:
Provided that no person shall be appointed as member after he has attained the age of sixty two years.
(2) The Chairperson and other members shall receive such remuneration and other allowances and shall be governed by such conditions of service as may be prescribed by the rules:
Provided that the salary and allowances determined by the State Government for the chairperson and members shall at no time be inferior to those applicable at the relevant time to the post of Principal Secretary in the State Government:
Provided further that the salary, allowances and other conditions of service of the chairperson and members once prescribed shall not be varied to their disadvantage after appointment.
(3) The chairperson and every other member shall before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, in such manner an before such authority as may be prescribed by the State Government.
(4) The Chairperson or a member may relinquish his office by giving, in writing to the State Government, notice of not less than three months.
9. The proviso added to sub Section 2 of Section 6 prohibits an alteration or change of service condition after appointment with respect to the salary and allowances of such a member to his disadvantage. The intention of the legislature is that once the appointment is made on certain conditions, till the period of appointment, the service conditions would not be altered 8 or change to the disadvantage of such an appointee. The rule making power though is available to the State but while making such a Rule if any condition is changed in the matter of grant of salary, that would not be applicable to those who are appointed prior to the date of amendment in the Rules. This being so,the consideration of the claim of the petitioner was not rightly done and by the impugned order his representation has wrongly been rejected.
10. Consequently this writ petition is allowed, the order dated 4th August 2011 is hereby quashed. Now the matter is to be re-examined by the respondents in view of the aforesaid findings and to pass appropriate orders granting the benefit of salary to the petitioner as was applicable on the date of appointment of the petitioner, without any deduction of pension. The arrears be calculated and be paid to the petitioner within two months from the date of receipt of certified copy of the order passed today.
11. The petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.
(K.K.TRIVEDI) Judge S/-
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