Madhya Pradesh High Court
Dinesh Kumar Tiwari vs The State Of Madhya Pradesh on 31 July, 2015
WP-13567-2014
(DINESH KUMAR TIWARI Vs THE STATE OF MADHYA PRADESH)
31-07-2015
1. The grievance of the petitioner in this petition is in regard to
grant of second time scale of pay w.e.f. 01/04/2006 in the pay
scale of Rs. 15600-39100+5400.
2. The petitioner was appointed as Craft Instructor on 06.08.1974,
he was promoted to the post of Training Officer Grade-II on
15.05.1997 thereafter, he was promoted as Training
Superintendent on 21.10.2004 and retired from service in the
month of July, 2013. The petitioner was granted two promotions he
was not found eligible in regard to grant of benefit of second time
scale on the ground that he was promoted on the post of training
superintendent which is a 100% promotional post. Hence, the
petitioner was not eligible to get the benefit of second time scale.
3. The General Administration Department issued a circular dated
24/02/2008 Annexure P/1 in regard to grant of benefit of time scale
pay to the employees. It is mentioned in the circular that the time
bound promotion scheme has been amended and the employees
would be entitled to get the benefit of time bound promotion under
the present scheme and those employees belonging to A & B class
of service would be eligible to get the benefit of time scale after
completion of eight years of service and class III employees would
be eligible to get the benefit on completion of 10 years of service.
The employees have to fulfill the criteria as per the scheme and the
employees would be eligible to get the benefit w.e.f. 01/04/2006.
4. The petitioner has specifically taken a ground that after
completing 33 years of service, he was getting the pay of
Rs.9300-34800+3600 while 700 juniors to the petitioner including
the persons who were appointed in the year 2002 were getting the
higher pay scale of Rs. 15600-39100+5400/-. The petitioner further
pleaded that the act of the respondents in not granting time scale
to the petitioner is arbitrary, discriminatory and violative of Article 14 and 21 of the Constitution of India.
5. The respondents in their reply assigned the reasons in regard to non-grant of second time scale pay to the petitioner that in accordance with the Finance Department Circular/clarification dated 13.11.2009, if an employee was granted two promotions and if the second promotion was on the post which is to be filled up by partially direct recruitment and promotion, then he would be entitled to second time scale pay. However, if the second promotion on the post which is 100% promotional post, then the employee is not eligible to get the benefit of second time scale. The respondents further pleaded that the petitioner was promoted to the post of Superintendent and the aforesaid post is 100% promotional post in accordance with the rules named as M.P. Industrial Training (Non-Gazetted) Class III Service Recruitment Rule 2009 hence, the petitioner is not eligible to get the benefit of second time scale. The relevant Clause of the circular dated 13.11.2009 reads as under:-
3 lekU;r% ugha ijUrq ftu 'kkldh; lsodksa dks 2 inksUufr;kWa izkIr gks pqdh 3 ftu 'kkldh; lsodksa dks gSa mUgsa f}rh; inksUufr izkjfEHkd in dh fu;qfDr ds okyk in va'kr% lh/kh HkrhZ in ls nks inksUufr;ksa dk dk gksus laca/kh lsok HkrhZ ykHk izkIr gks pqdk gS fu;eksa esa izko/kku gS rks D;k mUgsa Hkh le;eku ml in ij dh xbZ lsok dh x.kuk osrueku dk ykHk ns;
ds lanHkZ eas foRr foHkkx gksxk\ ds ifji= fnukad 24-01-2008 ds vuqlkj le;eku dh ik=rk gksxhA
6. The question for consideration before this Court is that whether the classification made by the Department in regard to second time scale pay on the ground that the second time time scale pay would not be applicable to the employees who have been promoted on the post which is 100% by promotion and second time scale pay would be granted to the employee who has been promoted on the post which is a promotional post and also direct recruitment post is just and proper. By the aforesaid classification, the respondent has created two class of employees in regard to grant of second time scale pay. Its a benefit and affect the career of an employee. The respondents have not assigned any reason behind this classification. It is well settled principle of law that Article 14 permits reasonable classification. However, it forbids class legislation.
7. The Constitution Bench of Supreme Court in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another and Center for Public Interest Litigation vs. Union of India reported in (2014) 8 SCC 682 while considering the provisions of Section 6-A of DSPE Act 1946 held as under in regard to Article 14 of Constitution of India:-
â39. Article 14 of the Constitution incorporates concept of equality and equal protection of laws. The provisions of Article 14 have engaged the attention of this Court from time to time. The plethora of cases dealing with Article 14 has culled out principles applicable to aspects which commonly arise under this Article. Among those, may be mentioned, the decisions of this Court in Chiranjit Lal Chowdhuri[60], F.N. Balsara[61], Anwar Ali Sarkar[62], Kathi Raning Rawat[63], Lachmandas Kewalram Ahuja[64], Syed Qasim Razvi[65], Habeeb Mohamed[66], Kedar Nath Bajoria[67] and innovated to even associate the members of this Court to contribute their V.M. Syed Mohammad & Company[68]. The most of the above decisions were considered in Budhan Choudhry[69].
40. This Court exposited the ambit and scope of Article 14 in Budhan Choudhry69 as follows:
â5. â¦...It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure.â
41. In Ram Krishna Dalmia, the Constitution Bench of five Judges further culled out the following principles enunciated in the above cases: (AIR pp 547-48 para 11) â(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
d. that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.â
8. The Supreme Court further in the case of Union of India and others vs. Atul Shukla and others reported in (2014) 10 SCC 432 has held that so long as the two employees are a part of the same cadre/rank, they cannot be treated differently either for the purpose of pay and allowances or other conditions of service including the age of superannuation. In the aforesaid judgment, the Supreme Court has considered various earlier judgments of the apex Court including the case of The Sate of West Bangal vs. Anwar Ali Sarkar and another reported in AIR (39) 1952 SC
75. The Court held as under:-
â16. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Articles 14 and 16 of the Constitution and laid down tests for determining the constitutional validity of a classification in a given case immediately assume importance. These pronouncements have by now authoritatively settled that Article 14 prohibits class legislation and not reasonable classification. Decisions starting with State of West Bengal v. Anwar Ali (AIR 1952 SC 75) down to the very recent pronouncement of this Court in Dr. Subramanian Swamy v. Director, CBI and Anr. (AIR 2014 SC 2140) have extensively examined and elaborately explained that a classification passes the test of Article 14 only if (i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and (ii) There exists a nexus between the differentia and the object of the legislation.â
9. From the aforesaid judgments of the apex Court the principle of law is clear that the employees who are part of the same cadre and rank, they cannot be treated differently for the purpose of pay and allowances. In the present case, the petitioner has been differentiated in regard to grant of second time scale pay on the ground that he was promoted second time on a post which was 100% promotional post. The petitioner has specifically pleaded that due to aforesaid differentiation, his juniors who were recruited in the year 2002 were getting higher pay in comparison to the present petitioner.
10. The petitioner has also filed the noting of the Department in regard to grant of time scale pay to the employees. The Director in his noting has clearly mentioned that the junior employees were getting higher pay in comparison to the Senior employees. The Additional Chief Secretary of Department in her nothing dated 20.02.2013 has opined that due to anomaly in regard to grant of second time scale 161 junior Officers were getting higher pay scale and salary in comparison to Senior Officers. The object of the Scheme in regard to grant of time Scale which was introduced vide Circular dated 24.1.2008 was to grant benefit of Time Scale of pay to the members of State Civil Services for the purpose of advancement of their career. It is mentioned in the Scheme that A and B grade employees of Civil Services would be eligible to get the benefit after 8 years of their appointment and Class-III employees shall be eligible to get the benefit after 10 years of completing the service. There is no mention in the Scheme that the benefit of Second Time Scale Pay would not be made applicable to those employees who have been promoted on a 100% promotional post. The aforesaid provision has been introduced by way of clarification. In the aforesaid circular no reasons has been assigned for discrimination. It is contrary to the principle of law laid down by the Supreme Court in the case of Union of India and others vs. Atul Shukla and others quoted above that if two employees are part of the same cadre and rank, they cannot be treated differently for the purpose of pay and allowances. Article 14 of the Constitution of India forbids class legislation.
11. In my opinion, by the act of clarification, the Finance Department has created two class of employees i.e. one class who are eligible to get benefit of second time scale pay, if they are promoted on a post which is partially by direct recruitment and partially by promotion and IInd class of employees who are promoted on a post which is 100% promotional post. It has created class within the class and due to the aforesaid anomaly the juniors were getting higher pay scale in comparison to the Seniors. The act is arbitrary, illegal and violative of Article 14 & 16 of the Constitution of India.
12. Consequently, the petition of the petitioner is allowed. The respondents are directed to grant the benefit of second time scale pay to the petitioner ignoring the fact that he was promoted on a post which was 100% promotional post in accordance with the Scheme of Time Scale of Pay 24.01.2008 (Annexure-P-1). If the case of the petitioner has not been considered, the same shall be considered in accordance with the Scheme and if the petitioner is found eligible, then the benefit be granted to him from the date of his entitlement in accordance with the Scheme. The arrears be also paid to the petitioner and his pay be fixed accordingly. The petitioner has been retired, his retiral benefits i.e. pension and Gratuity etc., be calculated accordingly within a period of three months from the date of receipt of the copy of the order. No order as to the costs.
(S.K. GANGELE) JUDGE