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[Cites 2, Cited by 11]

Madhya Pradesh High Court

Girish Chandra Shrivastava vs M.P. Purva Kshetra Vidyut Vitaran Co. ... on 8 August, 2017

    HIGH COURT OF JUDICATURE MADHYA PRADESH,
                   JABAPLUR


Single Bench: Hon'ble Shri Justice Subodh Abhyankar,J


               WRIT PETITION NO.5613 OF 2015

                     Girish Chandra Shrivastava.


                                     Vs.


       M.P. Purva Keshtra Vidyut Vitaran Co. Ltd. & others.
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Shri K.N.Pethiya, learned counsel for the petitioner.


Shri Abhinav Khedikar, learned counsel for the respondents.
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                                ORDER

(Passed on the 8th day of August, 2017) The petitioner before this Court, who is a retired Section Officer of Madhya Pradesh Power Transmission Company Ltd. is aggrieved by the inaction on the part of the respondents in not granting the benefit of one increment w.e.f. 1.1.2006 in the pre-revised pay scale before applying the increment of 6th Pay Commission w.e.f. 1.7.2007.

2. In brief the facts of the case are that the petitioner was initially appointed in the erstwhile M.P. Electricity Board as Office Assistant Grade-III and continued in the services of the Board till formation of M.P. State Electricity Board after bifurcation of the then State of Madhya Pradesh into the State of Chhattisgarh.

3. It is the case of the petitioner that in the year 2003, the MP State Electricity Board was further bifurcated into successive Distribution, Power Generation and Transmission Companies and the services of the petitioner have been allocated to the M.P. Purva Keshtra Vidyut Vitran Company Ltd and subsequently his services were allocated to the M.P. Transmission Co. Ltd. from where the petitioner has been retired, and as such both these companies are liable to pay the arrears of increment as claimed by the petitioner.

4. It is further submitted by the petitioner that the recommendations of the 6 th Pay Commission have been implemented by the State Government of Madhya Pradesh and the same have been adopted by all the companies of the erstwhile Board, hence the pay scale of all the employees has been revised as per the recommendations of the 6 th Pay Commission, and as per the option of the petitioner, his salary was revised by the Account Officer of the Distribution Company. It is further the case of the petitioner that there is a discrepancy in implementation of the recommendation of the pay fixation of the employees whose date of increment falls between 1st January to 30th June as per Rule 10 of the Pay Revision Rules, 2008, hence representations were submitted by the employees and the Union, therefore, the Central Government came out with a memorandum dated 19.3.2012, which has clarified the position and para 3 of the same reads as under:

“On further consideration and in exercise of the powers available under CCS (RP) Rules, 2008, the President is pleased to decide that in relaxation of stipulation under Rule 10 of these Rules, those central government employees who were due to get their annual increment between February to June during 2006 may be granted one increment on 1.1.2006 in the pre-revised scale as a one time measure and thereafter will get the next increment in the revised pay structure on 1.7.2006 as per Rule 10 of CCS (RP) Rules, 2008. The pay of the eligible employees may be re-fixed accordingly.” In view of the aforesaid clarification, a representation was submitted by the petitioner for removal of anomaly in the pay scale and it was prayed that his pay fixation should be done as per the aforesaid office memorandum and he should be granted annual increment in the pre-revised scale as one time measure w.e.f. 1.1.2006 and thereafter as per the recommendation of the 6 th Pay Commission he should be granted increment w.e.f.1.7.2006 as per the Rule 10 of the Rules 2008, and since no action on the aforesaid representation was taken by the respondents, therefore, the petitioner has filed the present writ petition.

5. The petitioner by way of amendment has also raised ground that in view of the decision of the Hon’ble Apex Court in the case of Gurucharan Singh Gravel Vs. Punjab Eletricity Board, reported in (2009) 1 SCC L&S 578 he is entitled for stepping up of his pay specially when his junior is getting more pay than the petitioner as his junior’s date of increment was 29.1.2006 and he has been granted additional increment prior to implementation of his regular increment w.e.f. July 2006 whereas the petitioner is getting the increment w.e.f. 01.07.2006.

6. On the other hand, the contention of the respondents is that the respondents have adopted the notification dated 28.2.2009 of the Madhya Pradesh Government with certain modifications which is apparent in the order dated 2.3.2009 filed as Annexure R-1. It is further submitted that the fixation of pay of the petitioner was done in the light of the clarification dated 12.6.2009 and as per the Query No.4 of the said clarification, it is provided that the employees whose increment falls in any date of January 2006, only those employees will get one annual increment w.e.f. 1.1.2006. Hence, the petitioner is not entitled to any relief as claimed by him. It is further submitted that the office memorandum issued by the Central Government dated 19.3.2012 has not been adopted by the MPSEB, therefore, the benefit cannot be granted to the petitioner. It is further submitted that the petitioner cannot seek parity with the case of Shri S.S.Thakur whose date of increment is 29th January which is in accordance with the clarification dated 12.6.2009.

7. Heard the learned counsel for the parties and perused the record.

8. So far as the circular dated 12.6.2009 (Annexure R-2) is concerned, it provides that if the increment is falling on any date of Janury, 2006, in that case the person should be given an increment w.e.f. 1.1.2006 and thereafter it would be as per the revised pay scale. However, as submitted by the petitioner, as per the office memorandum dated 19.3.2012, which refers to Central Civil Services (Revised Pay) Rules, 2008-cum-date of next increment in the revised pay structure. The aforesaid memorandum has taken note that the first increment, after fixation of pay on 1.1.2006 in the revised pay structure, will be granted on 1.7.2007 for those employees whose date of next increment was between 1.7.2006 to 1.1.2007.

9. The contention of the petitioner that the aforesaid clarification is applicable in the present case also for the reason that the respondents have adopted the rules issued in this behalf by the State Government known as Madhya Pradesh Revised Pay Rules, 2009 and it is stated in the office order dated 2.3.2009 (Annexure R-1) that the aforesaid rules would be applicable mutatis mutandis except the change in nomenclature. The contention of the petitioner is that after adopting the Rules 2009 of the State Government, the respondents are also bound to follow the further clarification issued in this behalf by the Central Government, who has amended the rules, whereas the fixation of pay of the petitioner was done in the light of clarification dated 12.06.2009 filed as Annexure R/2.

4 ftl deZpkjh dh osru eaMy ds ifji= dzekad o`f) rkjh[k 2 tuojh] 01&07@osiqiz@2108 fnukad 2006 gS rks D;k mls 2-4-2009 ds izko/kkuksa ds ekStwnk osru esa vuqlkj ekg tuojh 2006 dh fdlh osru o`f) ykHk fn;k Hkh frfFk dks iM+us okyh osru tk;sxkA o`f) fnukad 1 tuojh ls gh ykxw ekU; gS] vr% ,sls izdj.kksa esa fnukad 1-1-2006 dks ekStwnk osrueku esa ,d osru o`f) dk ykHk fn;k tk,xk ,oa rnksijkUr iqujhf{kr osru lajpuk esa osru fu/kkZj.k gksxkA bl laca/k esa mnkgj.k dzekad&3 layXu gSA But the aforesaid clarification has not been challenged by the petitioner.

10. Learned counsel for the petitioner has also relied upon the decision rendered by the Hon’ble Apex Court in the case of Harwindra Kumar Vs. Chief Engineer, Karmik and others, (2005) 13 SCC 300, in which the issue was whether the age of superannuation of the government servants of the State Government, which increased from 58 to 60 years by an amendment be also equally applied with the employees of UP Jal Nigam Engineers (Public Health Branch) Service Regulations who do not have their own regulations in this behalf and adopted the State Government policies in this regard. But the facts are distinguishable on the ground that in that case, U.P. Jal Nigam was bound by the regulations formed by it which provided that the service conditions of employees of U.P. Jal Nigam would be same as applicable to State Government servants.

11. Considering the aforesaid, this Court is of the opinion that if the respondents have adopted the policy of the State Government mutatis mutandis, with certain modifications then a benefit provided in the policy of the Government cannot be automatically available to an employee of the MPPKVVCL and as such the prayer of the petitioner on this count is rejected. However, the reliance placed by the learned counsel for the petitioner in the case of Gurcharan Singh Grewal (supra), wherein it is held that senior cannot be paid less than his junior even if anomaly in senior’s pay is due to difference of incremental benefits and in that the senior’s pay was directed to be stepped up with reference to higher pay of junior is worth consideration. The relevant para 16 and 17 of the said judgement are reproduced as under:

“17. Something may be said with regard to Mr. Chhabra's submissions about the difference in increment in the scales in which the Appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the incremental benefits in the scale given to the Appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the Appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the Appellant No.2.” (emphasis supplied)

12. In the considered opinion of this Court, the finding recorded by the Hon’ble Apex Court in the aforesaid case is also applicable in the present case in full force and no departure from the aforesaid reasoning can be made by this Court. In the circumstances, on the ground of discrimination, the petitioner has made out a case for interference in the anomaly, which has occurred in the petitioner’s pay. Accordingly, the petition filed by the petitioner is hereby allowed and the respondents are directed to re-fix the pension of the petitioner either by granting him benefit of left out one increment of 6th Pay Commission firstly w.e.f. 1.1.2006 in the pre-revised pay scale in terms of Circular (Annexure P-3) and then w.e.f. 1.7.2006 or by stepping up the salary of the petitioner with reference to the salary of his junior Shri S.S. Thakur and fix the pension accordingly.

(Subobh Abhyankar) Judge 08/08/2017 Ansari