Madhya Pradesh High Court
Dr. D.K. Pippal vs The State Of Madhya Pradesh on 20 December, 2017
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.17846/2012 (s)
Dr. Ravindra Tathodi Vs. The State of Madhya Pradesh
Writ Petition No.524/2013 (s)
Dr. Smt. Vimla Tikarya Vs. The State of Madhya Pradesh
Writ Petition No.2564/2013 (s)
Dr. Raj Kumar Dhurve Vs. The State of Madhya Pradesh
Writ Petition No.6102/2013 (s)
Dr. K.K. Khosala Vs. The State of Madhya Pradesh
Writ Petition No.7204/2013 (s)
Dr. Surendra Bahadur Singh Vs. The State of Madhya Pradesh
Writ Petition No.9850/2013 (s)
Dr. Arun Kumar Trivedi Vs. The State of Madhya Pradesh
Writ Petition No.10047/2013 (s)
Dr. Mahendra Narayan Suryawanshi Vs. The State of Madhya Pradesh
Writ Petition No.10123/2013 (s)
Dr. Anand Kumar Khare Vs. The State of Madhya Pradesh
Writ Petition No.10126/2013 (s)
Dr. Rajesh Shrivastava Vs. The State of Madhya Pradesh
Writ Petition No.10747/2013 (s)
Dr. Rohit Kumar Gohiya Vs. The State of Madhya Pradesh
Writ Petition No.12298/2013 (s)
Dr. Witthal Rao Nagle Vs. The State of Madhya Pradesh
Writ Petition No.13313/2013 (s)
Dr. Ashok Kumar Jain Vs. The State of Madhya Pradesh
Conc. No.2065/2013
Dr. Girish Bajpei Vs. The State of Madhya Pradesh
Writ Petition No.21656/2013 (s)
Dr. R.K.Tiwari Vs. The State of Madhya Pradesh
Writ Petition No. 2765/2014 (s)
Dr. A.K. Tiwari Vs. The State of Madhya Pradesh
Writ Petition No. 6236/2014 (s)
The M.P.Medical Officers Association Vs. The State of Madhya Pradesh
Writ Petition No. 8497/2014 (s)
Dr. D.C.Agrawal Vs. The State of Madhya Pradesh
Writ Petition No. 18425/2014 (s)
Dr. K.C.Singhai Vs. The State of Madhya Pradesh
(2)
Writ Petition No. 21943/2015 (s)
Dr. Madhu Verma Vs. The State of Madhya Pradesh
Writ Petition No. 3283/2016 (s)
Dr. Ganesh Prasad Nema Vs. The State of Madhya Pradesh
Writ Petition No. 3301/2016 (s)
Dr. Ramdeen Nanhoriya Vs. The State of Madhya Pradesh
Writ Petition No. 3372/2016 (s)
Dr. J.N.Pandey Vs. The State of Madhya Pradesh
Writ Petition No. 3767/2016 (s)
Dr. K.C.Dubey Vs. The State of Madhya Pradesh
Writ Petition No. 4264/2016 (s)
Dr. H.N.Nayak Vs. The State of Madhya Pradesh
Writ Petition No. 7952/2016 (s)
Mahendra Kumar Khare Vs. The State of Madhya Pradesh
Writ Petition No. 9301/2016 (s)
Dr. Anand Kumar Sharma Vs. The State of Madhya Pradesh
Writ Petition No. 9520/2016 (s)
Dr. H.P.Singh Vs. The State of Madhya Pradesh
Writ Petition No. 10927/2016 (s)
Dr. (Smt.) Sudha Namdev Vs. The State of Madhya Pradesh
Writ Petition No. 11507/2016 (s)
Dr. Rakesh Verma Vs. The State of Madhya Pradesh
Writ Petition No. 18715/2016 (s)
Dr. Shankar Prasad Garg Vs. The State of Madhya Pradesh
Writ Petition No. 2421/2017 (s)
Dr. Shyam Manohar Sirothiya Vs. The State of Madhya Pradesh
Writ Petition No. 3684/2017 (s)
Dr. Kiran Shejwar Vs. The State of Madhya Pradesh
Writ Petition No. 5258/2017 (s)
Dr. D.K.Pippal Vs. The State of Madhya Pradesh
Writ Petition No. 5764/2017 (s)
Dr. Ramesh Chandra Jain Vs. The State of Madhya Pradesh
Writ Petition No. 6803/2016
Dr. Jinesh Diwakar Vs. The State of Madhya Pradesh & others
Writ Petition No. 14531/2015 (s)
Dr. Gyanendra Pratap Singh Vs. The State of Madhya Pradesh & others
Writ Petition No. 3043/2016 (s)
Dr. M.K.Khare Vs. The State of Madhya Pradesh & others
(3)
Bench Constituted : Hon'ble Shri Justice J.K. Maheshwari
Judgment delivered by : Hon'ble Shri Justice J.K. Maheshwari
Whether approved for reporting: Yes/No
Name of counsel for the parties:
For the petitioners :
Ms. Shobha Menon, Senior Counsel assisted by Shri Rahul Choubey,
Shri P.N. Dubey, Shri V.D.S.Chouhan, Shri Sanjay Singh, Shri M.P. Shukla, Shri
A.K. Singh, Shri Ashish Shroti, Shri Arpan Pawar, Shri S.S.Baghel, Advocates.
For the respondent/State :
Shri Samdarshi Tiwari, Additional Advocate General, Shri Sanjay Dwivedi,
Deputy Advocate General, Shri Deepak Awasthi, Deputy Advocate General, Shri
Amit Seth, Government Advocate Shri Pankaj Dubey, Shri A.P. Singh and Shri
S.S.Bisen, Advocates.
Law laid down:
1. Under the M.P. Public Health and Family Welfare (Gazetted) Service
Recruitment Rules, 2007, the Medical Officers and Specialists or Dental
Surgeons and Dental Specialists are entitled to get the junior grade scale, senior
grade scale, selection grade scale and senior selection grade scale on
completion of tenure from the date of appointment and getting the higher grade
scale of pay as per the recommendation of the Screening Committee, cannot be
withdrawn. The Circular dated 30.5.2012 being contrary to the spirit of the said
Rules, is quashed. The genesis to grant the benefit of time scale of pay is the
tenure of the service rendered in a particular grade scale and after completion of
the said tenure, they may be entitled to get the benefit of higher grade scale.
2. The effect of substitution of Schedule brought on 15.2.2011 would co-
relate from the date of commencement of the Rules i.e. 4.1.2008.
3. The pecuniary benefit given to the petitioners affects the civil
consequences, it cannot be withdrawn without following the principle of natural
justice.
Significant Paragraph Nos.: 14, 15 and 16
**************
(4)
ORDER
(20/12/2017) All these writ petitions have been filed by the petitioners under Article 226 of the Constitution of India being aggrieved by the order dated 30.5.2012 passed by respondent No. 1 and the consequential orders dated 1.6.2012, 25.6.2012 and 23.7.2013 whereby the recovery along with the interest @ 12% per annum have been ordered and also directed for the adjustment of the arrears of 6 th Pay Commission from the proposed recovery. The order dated 14.1.2016 issued to explain the Rules is also under challenge, however, seeking directions to quash those orders, the petitioners who are Association of Doctors, Medical Officers, Dental Surgeons, Specialists and Dental Specialists in individual, have come before this Court seeking appropriate reliefs.
2. The petitioners and members of the Association were appointed on the post of Medical Officer in Public Health and Family Welfare Department; while some of them were appointed as Dental Surgeons. Some members of Association and some petitioners were promoted as Specialists and Dental Specialists. Their appointments were made under the M.P. Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 (hereinafter shall be referred as "the old Rules") prevalent at the time of their appointment or promotion. It is not in dispute that after repeal of the old Rules, the new Rules known as M.P. Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 2007 (hereinafter shall be referred as "the new Rules) came into existence w.e.f.4.1.2008. Rule 4 and Rule 5 of the new Rules deals the Constitution of the Service, (5) Classification and scale of pay as specified in Clauses 10, 11, 12 and 13 of Schedule I. Learned counsel representing the petitioners have vehemently argued that on perusal of column 6 of Schedule I, after completing six years of service in the junior grade scale as per the recommendation of the Screening Committee, the employee can get senior grade scale, selection grade scale and senior selection grade scale on completion of tenure of six years in each cadre. Under the Rules the cut-off date to grant grade scale of pay has not been prescribed. The Rules merely specify the tenure of service in each cadre for granting the benefit of four tier grade scales of pay to the Doctors.
3. It is said, the State Government has itself issued the order dated 26.8.2008 explaining that all the Medical Officers, Dental Surgeons and officers of Special cadre may be entitled to get four tier grade scale of pay on completion of the tenure so specified. On issuing the said order the State Government has issued the clarification vide Annexure P-7 dated 23.5.2009 stating that the real benefit of four tier grade scale of pay may be allowed w.e.f. 26.8.2008, though notional fixation of pay may be made from the date of entitlement. In furtherance to it, petitioners were given the benefit on 7.7.2009 as per the recommendation of the Screening Committee in furtherance to the orders of the State Government. Surprisingly by the order impugned dated 30.5.2012 without any reason or rhyme and affording opportunity to the petitioners, the State Government has cancelled the order dated 23.5.2009. In the order dated 30.5.2012, it is specified that the benefit of four tier grade scale of pay allowed to the Doctors w.e.f. 26.8.2008 shall (6) remain unchanged but the benefit of grade scale of pay is withdrawn however the said circular is contrary to the spirit of the new Rules and in violation of the principle of natural justice, therefore, it may be quashed.
4. It is urged that by the consequential orders dated 1.6.2012 and 25.6.2012 the amount of arrears of grade scale of pay given to the petitioners have been instructed to adjust in the arrears of 6 th Pay Commission in place of recovery. It is further urged that the clarification issued by the Government on 23.7.2013 to the order dated 26.8.2008 is also contrary to the spirit of the new Rules, therefore the order of recovery with interest passed on 14.1.2016 may also order to be quashed.
5. On the other hand the respondent State has filed their reply in W.P. No. 10047/2013, which is adopted in all the cases. In the reply it is said that the plea taken by the petitioners is misconceived and bereft of any substance. They have not disputed the applicability of the new Rules. The State Government referring unamended new Rules said that the eligibility for the respective grade scales of pay, as specified shall be subject to the recommendation of the Screening Committee after six years of service in each cadre to the extent of percentage of posts of the junior grade scale, senior grade scale and selection grade scale. But the nature of duties and the posts of the Doctors as they were performing earlier would remain unchanged. It is said that the instructions dated 23.5.2009 were issued for implementation of the scale of pay w.e.f. 26.8.2008 but it was not in confirmity to the statutory rules and runs contrary. More so, prior to issuing these instructions, sanction from the Finance Department (7) contemplated under Rule 60 of the M.P. Financial Code Vol-I was not taken. It is said that looking to the contents of the circular dated 23.5.2009, pay fixation of the petitioners were made with retrospective date even including the period prior to 26.8.2008, which may cause financial burden on the State exchequer, however, looking to the Audit Report, the instructions dated 23.5.2009 were found defective, hence it was withdrawn vide order Annexure P-1 dated 30.5.2012. In consequence to it, fixation done earlier were found defective, however, withdrawing the benefit given, order of recovery and its adjustment in the amount of arrears of 6th Pay Commission have rightly been directed. In support of the said contention, reliance is placed on the judgment of Chandi Pd. Oniyal Vs. State of Uttarakhand reported in (2012) 7 SCC 412, to submit that any defective order passed by the Government can be withdrawn and it is within their domain, therefore, issuance of consequential order would not give any cause to the petitioners to file these petitions asking the reliefs prayed in these petitions. In view of the said submission, it is said, the order impugned passed by the State Government may not be interfered with, dismissing all the writ petitions.
6. After having heard learned counsel for the parties and on perusal of the pleadings, it is not in dispute, the appointments of the petitioners were made under the old Rules applicable at the time of their appointment or promotion. Now after commencement of the new Rules w.e.f. 4.1.2008, their service conditions are governed by these Rules. Rule 2(L) of the new rules deals the service, which means the Madhya Pradesh Public Health and Family Welfare (8) (Gazetted) Service. Rule 4 specifies the constitution of service, which consists the persons who at the time of commencement of the new rules were holding, substantively or in the officiating capacity, the posts specified in Schedule I. It is not in dispute that petitioners who were appointed either as Medical Officers and Dental Surgeon or the Specialists and Dental Specialists are holding the post specified in Schedule I. Rule 5 deals the classification of scale of pay of the service, meaning thereby the scale of pay attached thereto and the number of posts included in services shall be in accordance with the Schedule I. However, it cannot be doubted that the service conditions with respect to the grade scale of pay of the petitioners would be governed by Schedule I of the new Rules w.e.f. 4.1.2008. Schedule I of the new Rules has again been substituted by notification dated 15.2.2011. Prior to the substitution of the Schedule the posts of Specialists, Dental Specialists, Medical Officers and Dental Surgeons were differently placed in the context of the percentage of the posts in the cadre and tiers of grade scale of pay. The substituted and the old Schedule I may have material bearing to adjudicate the issue involved looking to the averments made in the petition as well as return, however, they are reproduced to the extent of relevancy of the posts of these cases.
(9) SCHEDULE - I (Unamended) Sr.No Name of Posts Number of Classificat Scale of Pay Remarks . included in Posts ion service (5) (1) (3) (4) (6) (2) 10 Specialist 1970 Class-I On recommendation of Screening Committee (a) Junior Grade 1182 -do- 10000-325-15200 after 6 Years service in Scale 60% Junior grade scale, 6 453 -do- 12000-375-16500 (b) Senior Grade years service in senior Scale 23% 295 -do- 14300-400-18300 grade scale & 6 years service in selection (c) Selection 40 -do- 16400-450-20000 grade scale eligible for Grade Scale 15% senior grade scale, (d) Senior selection grade scale Selection Grade and senior selection Scale 2% grade scale respectively but there shall be no change in their duties on selection into senior and selection pay scales and they shall continue to perform emergency duties, as well. 11 Dental Specialist 06 Class-I On recommendation of Screening Committee (a) Junior Grade 4 -do- 10000-325-15200 after 6 Years service in Scale 60% 1 -do- 12000-375-16500 Junior grade scale and 4 (b) Senior Grade years service in senior Scale 25% 1 -do- 14300-400-18300 grade scale eligible for senior grade scale and (c) Selection selection grade scale Grade Scale 15% respectively but there shall be no change in their duties on selection into senior and selection Grade pay scales and they shall continue to perform emergency duties, as well. 12 Medical Officer 3520 On recommendation of Screening Committee (a) Junior Grade 2112 Class-II 8000-275-13500 after 6 Years service in Scale 60% 810 Class-I 10000-325-15200 Junior grade scale, 4 (b) Senior Grade years service in senior Scale 23% 528 Class-I 12000-375-16500 grade scale & 6 years (c) Selection 70 Class-I 14300-400-18300 service in selection grade scale eligible for Grade Scale 15% senior grade scale, (d) Senior selection grade scale Selection Grade and senior selection Scale 2% grade scale respectively but there shall be no change in their duties on selection into senior and selection grade pay scales and they shall continue to perform emergency duties, as well. (10) 13 Dental Surgeon 137 On recommendation of Screening Committee (a) Junior Grade 83 Class-II 8000-275-13500 after 6 Years service in Scale 60% 34 Class-I 10000-325-15200 Junior grade scale and 4 (b) Senior Grade years service in senior Scale 25% 20 Class-I 12000-375-16500 grade scale and 4 years service in senior grade (c) Selection scale eligible for senior Grade Scale 15% grade scale and selection grade scale respectively but there shall be no change in their duties on selection into senior and selection grade pay scales and they shall continue to perform emergency duties, as well.
SCHEDULE - I (Substituted w.e.f. 15.2.2011) Sr.No Name of Number of Classifi Scale of Pay Remarks . Posts Posts cation included in (5) ( (1) service (3) 6) (4) (2) 10 Specialist Total Post (1) On the recommendation of 3057 Screening Committe, after completing
(a) Junior Class-I P.B.-3(15600- 6 Years service in Junior grade scale, Grade Scale 39100) senior grade scale, and selection (100%) +Grade Pay grade scale eligible for senior grade 6600 scale, selection grade scale and
-do- senior selection grade scale respectively but there shall be no P.B.-3(15600- change in their duties in senior grade
(b) Senior 39100) Grade Scale scale, selection grade scale and +Grade Pay senior selection grade scale and they (100% after 7600 completing 6 shall continue to perform emergency year service duties as well.
in Junior (2) Post of regional Director are also Grade Scale) included in sanctioned posts of Senior selection Grade.
(c) Selection Grade Scale (100% after completing 6 year service in Senior Grade Scale)
(d) Senior Selection Grade Scale (5% of total post after completing 6 year service in Selection Grade Scale) (11) 11 Dental Total Post (1) On the recommendation of Specialist Screening Committe, after completing 12 6 years service in Junior grade scale, senior grade scale, and selection grade scale eligible for senior grade Class-I P.B.-3(15600- scale, selection grade scale and
(a) Junior 39100)+Grad senior selection grade scale Grade Scale e Pay 6600 respectively but there shall be no (100%) change in their duties in senior grade scale, selection grade scale and
-do- P.B.-3(15600- senior selection grade scale and they 39100) shall continue to perform emergency +Grade Pay duties as well.
(b) Senior 7600
Grade Scale
(100% after
completing 6 -do-
year service P.B.-4
in Junior (37400-
Grade Scale) 67000)
+Grade Pay
8700
-do-
(c) Selection
Grade Scale
(100% after P.B.-4
completing 6 (37400-
year service 67000)
in Senior +Grade Pay
Grade Scale) 8900
(d) Senior
Selection
Grade Scale
(5% of total
post after
completing 6
year service
in Selection
Grade Scale)
(12)
12 Medical Total Post (1) On the recommendation of
Officer Screening Committee, after
3790 completing 6 Years service in Junior
grade scale, 6 years in senior grade
scale, and 6 years service in selection Class-II P.B.-3(15600- grade scale eligible for senior grade
(a) Junior 39100)+Grad scale, selection grade scale and Grade Scale e Pay 5400 senior selection grade scale (100%) respectively but there shall be no change in their duties in senior grade Class-I P.B.-3(15600- scale, selection grade scale and 39100) senior selection grade scale and they +Grade Pay shall continue to perform emergency
(b) Senior 6600 duties as well.
Grade Scale
(100% after
completing 6 Class-I
year service P.B.-3
in Junior (15600-
Grade Scale) 39100)
+Grade Pay
7600
Class-I
(c) Selection
Grade Scale
(100% after P.B.-4
completing 6 (37400-
year service 67000)
in Senior +Grade Pay
Grade Scale) 8700
(d) Senior
Selection
Grade Scale
(2% of total
post after
completing 6
year service
in Selection
Grade Scale)
(13)
13 Dental Total Post (1) On the recommendation of
Surgeon Screening Committe, after completing
144 6 Years service in Junior grade scale,
6 years in senior grade scale, and 6
years service in selection grade scale Class-II P.B.-3(15600- eligible for senior grade scale,
(a) Junior 39100)+Grad selection grade scale and senior Grade Scale e Pay 5400 selection grade scale respectively but (100%) there shall be no change in their duties in senior grade scale, selection Class-I P.B.-3(15600- grade scale and senior selection 39100) grade scale and they shall continue to +Grade Pay perform emergency duties as well.
(b) Senior 6600
Grade Scale
(100% after
completing 6 Class-I
year service P.B.-3
in Junior (15600-
Grade Scale) 39100)
+Grade Pay
7600
Class-I
(c) Selection
Grade Scale
(100% after P.B.-4
completing 6 (37400-
year service 67000)
in Senior +Grade Pay
Grade Scale) 8700
(d) Senior
Selection
Grade Scale
(2% of total
post after
completing 6
year service
in Selection
Grade Scale)
7. On perusal of the old and substituted Schedule I, the benefits of the junior grade scale, senior grade scale, selection grade scale on the posts namely Specialists, Dental Specialists, Medical Officers, Dental Surgeon are available to all the 100% posts. Thereafter in the cadre of Specialists and Dental Specialists, 5% of the total posts in the selection grade scale may get the benefit of senior selection grade scale; while in the cadre of Medical Officer and Dental Surgeon, only 2% of total posts may get the benefit of the senior selection grade scale. In addition, by the substituted schedule I of the new Rules either in the cadre of Medical Officer and Specialist or in the cadre of Dental Surgeon and Dental Specialist, the benefit of four (14) tier grade scales of pay are made available to the post holders. Although in the old schedule I of the new rules in the cadre of Dental Surgeon and Dental Specialist, the benefit of three tier scales were specified, discriminating with the posts of Medical officers and specialists because they were having benefit of four tier grade scale of pay.
8. By the unamended Schedule of new Rules in the cadre of Medical Officer and Specialists out of the total posts, 60% posts as specified were available to get the benefit of junior grade scale, 23% posts for senior grade scale, 15% posts for selection grade scale and 2% posts for senior selection grade scale; while in the cadre of Dental Specialist and Dental Surgeon, 60%, posts were for junior grade scale, 25% posts for senior grade scale and 15% posts for selection grade scale. Now by the substituted Schedule I of the new Rules relaxing the percentage of the posts, the benefit of junior grade scale, senior grade scale and selection grade scale is made available to 100% posts of the Doctor posted either in the cadre of Medical Officer and specialists or Dental Surgeon and Dental Specialists. Only for grant of senior selection grade scale, the ceiling of 5% posts were specified for the Specialists and Dental Specialists, while 2% posts for the Medical Officer and Dental Surgeons. Thus, looking to the totality of the aforesaid circumstances, it can safely be observed that the substituted Schedule I of the new Rules is more rational, equitable and reasonable.
9. It is made clear here that the benefit of four tier grade scale of pay i.e. junior grade scale, senior grade scale, selection grade scale and senior selection grade scale shall be available on completion of (15) tenure of service i.e. six years in the each grade scale of pay as per the recommendation of the Screening Committee to get benefit of the just higher grade scale of pay in ratio to the percentage of the posts as specified in the substituted Schedule I of new Rules. Thus, in nut shell as per the Rules, for consideration to extend the benefit of junior grade scale, senior grade scale, selection grade scale and senior selection grade scale, the tenure of service of six years in individual cadre and the performance may be assessed by the Screening Committee to make recommendation for grant of higher grade scale. The said fact also finds support from the language of the circular dated 26.8.2008. Thus, either in the unamended Schedule I or in the substituted Schedule I, the cut-off date to apply four tier scales of pay have not been specified. In the given facts, if we see Rule 4(1), which deals with constitution of service and specifies that after commencement of these Rules if a person is holding the post substantively or in the officiating capacity, the post specified in Schedule I, shall be included in the connotation "service" under the new Rules. Meaning thereby if a Doctor appointed under the new Rules or prior to the same after commencement of these Rules, be treated in the "service" and hold the post as specified in Schedule I. If the tier of pay scale as specified may be given to the individual cadre of the Specialists, Medical Officers, Dental Specialist and Dental Surgeon then it may be taken in consideration on completion of the tenure of six years of the service relates back to their date of appointment and the benefit of particular grade scale of pay would be available as per the recommendations of the Screening Committee, on completion of the tenure of service in the (16) respective cadre of grade scale of pay and its real benefit may be given w.e.f. 26.8.2008 as directed by the Government circular.
10. Now the effect of the substituted Schedule I to unamended Schedule I of new Rules, is also required to be explained. On substitution of Schedule I, it would apply from the date as it exists on the date of commencement of the new Rules i.e. 4.1.2008. Thus, persons who are holding the post of Schedule I and comes within the definition of "service" would be benefited as per substituted Schedule w.e.f. the date of commencement of the new Rules i.e. 4.1.2008 and not from 15.2.2011 i.e. the date of substitution. The effect of substitution of the Schedule or any provision has been considered by the Hon'ble the Supreme Court in the case of Government of India and others Vs. Indian Tobacco Association reported in (2005) 7 SCC 396 whereby it has been held that in case substitution is made in the existing statutory provision, it would relate back to the date on which the law came into existence. However, considering the aforesaid, it can safely be held that the substituted Schedule brought in the new Rules w.e.f. 15.2.2011 would be given effect w.e.f. 4.1.2008 i.e. the date on which the new Rules came into existence and the percentage of the post to extend the benefit of grade scale of pay specified in unamended Schedule I of the new Rules would not have any bearing after the substituted Schedule I.
11. Reverting to the context and looking to the discussion of the Rules as made hereinabove, the justification to cancel the order dated 23.5.2009 vide order dated 30.5.2012, is required to be seen. The order dated 23.5.2009 was issued for explaining the order dated 26.8.2008 to say how the execution in the matter of grant of grade (17) scale of pay may be made to the Medical Officers, Specialists, Dental Surgeons and Dental Specialists. It is said that from the date of appointment and on completion of the tenure of six years, the notional pay fixation in each tier of the grade scale of pay may be done but actual benefit would accrue w.e.f. 26.8.2008. In case notional period came with effect from the date of implementation of the instructions i.e. 26.8.2008, the said date would be relevant for grant of the actual benefit in that particular grade scale of pay. It has also been clarified that on account of extending the benefit of higher grade scale of pay in any of the particular tier of the grade of scale of pay, the duties and posts of the employees would not change and they will continue to perform their duties as they were performing earlier. As per the said instructions the benefit was extended vide order dated 7.7.2009 to all the petitioners. But after about 2 years and 10 months vide order Annexure P-1 dated 30.5.2012, the order dated 23.5.2009 was cancelled and the benefits given to the petitioners have been withdrawn. On perusal of the order impugned dated 30.5.2012 the reason of cancellation of the order has not been mentioned, however, it is an unreasoned order.
12. If we examine the justification of the order in the context of stand taken by the respondents/State, then as per new Rules the benefit of four tier scale of pay is available to the Specialists and the Medical Officers or Dental Specialists and Dental Surgeons on having their eligibility as specified in Column No. 6 of said Schedule I. However, the benefit available either in the cadre of the Specialists, Medical Officers, Dental Surgeons or Dental Specialists in all four tier of the grade scales of pay on completion of six years service in (18) individual cadre as per recommendation of the Screening Committee and for the next higher scale following the similar procedure. However, on substitution of Schedule I of the new Rules, all the Post holders who are in the junior grade scale would be entitled to get senior grade scale, selection grade scale and senior selection grade scale on completion of the tenure of six years of service as per recommendation of the Screening Committee. But to extend the benefit of senior selection grade scale, out of total posts 5% and 2% respectively would be filled up from the cadre of selection grade scale. Therefore, in the context of the Rules, contents of the circular dated 23.5.2009 may be incorrect but after substitution of Schedule I in the new Rules, it would not make any change as discussed above and the benefit would be available to the Doctors irrespective to the percentage of their post from the date of their initial appointment and on completion of their tenure of six years, based on the recommendation of the Screening Committee. Therefore, cancellation of the earlier circular dated 23.5.2009 vide unreasoned order dated 30.5.2012 is arbitrary, unreasonable and contrary to the spirit of the new Rules. In view of the above discussion, the order impugned dated 30.5.2012 is held as contrary to the new Rules, therefore, the judgment of Chandi Pd. Oniyal Vs. State of Uttarakhand (supra) relied by the respondents is of no help to them.
13. Simultaneously prior to passing the said circular neither any show cause notice nor an opportunity of hearing were afforded to any of the beneficiary. Considering the aforesaid, it can safely be observed that if the employees have been given the benefit of grade scale of pay, and any adverse order is passed withdrawing the said (19) benefit, it may have civil consequences, which cannot be passed in non-observance of the principle of natural justice. In this regard guidance can be taken from the judgment of the Supreme Court in the case of Gajanan L. Parnekar Vs. State of Goa and another reported in 1999 (8) SCC 378. In the said judgment the Apex Court has observed as under:-
"8. The manner in which the order dated 21.1.1999/22- 1-1999 came to be made was, to say the least, not proper. The appellant was denuded of the benefits of the order dated 16-2-1994 unheard. There has been a breach of the principle of natural justice and a violation of fair play in action. The earlier order made in favour of the appellant as early as on 16-2-1994 was rescinded without giving any opportunity to the appellant to show cause against it. Absorption of the appellant as Headmaster of Government High School by the order dated 16-2-1994 had not been put in issue through any proceedings by any party at any point of time. That benefit could not have been taken away from the appellant without affording him any opportunity of hearing, even where the absorption as Headmaster of the High School had been put in issue. The Principles of natural justice have been respected in their breach."
Thus, on this count also the order impugned Annexure P-1 dated 30.5.2012 cannot be allowed to stand.
14. As per the discussion made hereinabove the order impugned/circular dated 30.5.2012 is hereby quashed. On account of quashing the said circular, the consequential orders dated 1.6.2012 and 25.6.2012 directing recovery and the adjustment of the amount of grade scale of pay with the arrears of 6 th Pay Commission also stand quashed. The State Government by issuing notifications dated 23.7.2013 and order dated 14.1.2016 made an attempt to clarify the Rules inter alia explaining the applicability of the benefit of four tier scale of pay but as discussed above the Rules are self (20) explanatory and as per the discussion made hereinabove the benefit shall be given as per circular of the Government dated 26.8.2008 applying the substituted Schedule I of the new Rules. Therefore, the clarification issued by the Government and the direction of recovery with interest is contrary to the spirit of the Rules.
15. In view of the foregoing discussion, all these petitions succeed and are hereby allowed. Orders dated 30.5.2012, 1.6.2012, 25.6.2012, 23.7.2013 and 14.1.2016 are hereby quashed. It is hereby directed that the benefit of four tier grade scale of pay would be available to the Specialists, the Medical Officers, the Dental Specialists and the Dental Surgeons as per substituted Schedule I of the new Rules on completion of six years of their service in the respective grade scale of pay from the date of their initial appointment on recommendation of the Screening Committee. On account of quashing the orders dated 30.5.2012 and consequential orders dated 1.6.2012, 25.6.2012, 23.7.2013 and 14.1.2016 of recovery and adjustment of the amount of the grade scale of pay with the arrears of 6th Pay Commission are also quashed,
16. Consequent upon quashing the aforesaid orders, it is hereby directed that the Government shall extend the benefit of respective grade scale of pay to the petitioners as per their entitlement and shall finalize the same as per the substituted Schedule I of the new Rules in view of the discussion made hereinabove. The said exercise must be completed within a period of four months reviving the order dated 7.7.2009. Accordingly the arrears of the grade scale of pay be paid to them within a period of two months and shall not be adjusted in the arrears of 6th Pay Commission. In case the recovery is already made, (21) it be reimbursed. Let this entire exercise be complete within six months from today otherwise the petitioners would be entitled to claim interest on the amount of arrears as per the prevalent Bank rate. In the facts and circumstances of the case, the parties are directed to bear their own costs.
Let a photocopy of this order be placed in the record of each petition for its record.
(J.K.Maheshwari) Judge PB Digitally signed by PRADYUMNA BARVE Date: 2017.12.21 20:01:56 +05'30'