Mahabali Suryavanshi vs The State of Madhya Pradesh

Sanjay Yadav, J—With consent of learned counsel for the parties, the matter is finally heard.

By order dated 22.11.2010, petitioner, Steward (since retired) was granted benefit of second higher pay scale of Rs. 10850-18600 w.e.f. 13.1.2004. Grievance raised by the petitioner is that he is entitled for higher pay scale with effect from 31.5.1997, i.e., the date when the petitioner completed 18 years of service.

Appointed on a Static Cadre of Steward on 31.5.1979, petitioner completed 9 years of service on 31.5.1985 and 18 years on 31.5.1997.

That, to mitigate the hardship of employees stagnating on identified Static cadre, the respondents issued circulars on 31.3.1983 of granting higher pay scale to the incumbents holding the Static post on completion of 9/18 years of service. The circular dated 31.3.1983 was further clarified on 4.3.1987 and 31.10.1987.

That, a controversy arose in respect of grant of second higher pay scale which was claimed by one Steward, viz., Shri Yashwant Rao Pawar, similarly placed as the petitioner, to be equivalent to the pay scale of Assistant Engineer on the ground that the first higher pay scale on completion of 9 years was equivalent to Junior Engineer. Shri Pawar succeeded in establishing his claim before Labour Court; wherein the contention by the respondent Board as to his entitlement for the pay scale of Section Officer as Second Higher Pay Scale was turned down. The order passed by Labour Court on 1.1.1992 on an application under Section 31 (3) read with Section 61 of Madhya Pradesh Industrial Relations Act, 1961 was upheld in Appeal No. 243 MPIR/02 by the Industrial Court by order dated 7.5.1993. Writ Petition No. 488/1994 there against was dismissed on 18.2.1994, which later on was affirmed by the Supreme Court.

These facts are not in dispute.

It is also not in dispute that petitioner, claiming parity with Shri Yashwant Rao Pawar filed a Writ Petition No. 792/2005 which was disposed of on 8.5.2008 directing the respondents to consider petitioner''s claim at par with said Shri Pawar. However, having suffered a rejection order on 22.7.2008 petitioner again approached this Court vide Writ Petition No. 11341/2008 wherein by order dated 26.4.2010 the order dated 22.7.2006 was quashed and the petition was allowed in the following terms:

"10. In the present case also the Board has raised the same objections as were raised in the case of Yashwant Rao Pawar before the Labour Court and rejected as is evident from the orders passed by the Labour Court, Industrial Court and this Court. Once the objection identical in nature and the justification also for denying the benefit of pay scale in the cadre of Assistant Engineer to Yashwant Rao Pawar is rejected by the courts, concurrently the same analogy and principle has to be applied in the case of the petitioner also and for the same reason arguments now advanced and the justification now given for denying the benefit to the petitioner has to be rejected. After evaluating the totality of the circumstances and the orders passed by the Labour Court and the Industrial Court, affirmed by this Court and the Hon. Supreme Court there is no iota of doubt that the case of the petitioner and that of Yashwant Rao Pawar are exactly identical and similar to each other and the same justification and objection raised by the Board for denying the benefit of higher pay scale to the petitioner is rejected by this court. The objection of the Board to the effect that a Division Bench of this court in W.A. No. 38/06 has held that the case of Yashwant Rao Pawar cannot be treated as precedent is also misconceived. The observation made in W.A. No. 38/06 was in relation to claim made by the Board challenging the order dated 3.2.2006 passed in W.P. No. 1336/03, in the matter of granting the next higher pay scale equivalent to that of Divisional Engineer to Shri Yashwant Rao Pawar, after completing 18 years of service the said observation does not relate to grant of benefit of first higher pay scale after completing 9 years of service with respect of Yashwant Rao Pawar. That apart the observations if carefully gone through would indicate that it only directs grant of benefit to respondent therein, i.e., Yashwant Rao Pawar because he had only approached the court, I am of the considered view that the said observations in no manner whatsoever comes in the way of the petitioner. It is a case where both the petitioner and Yashwant Rao Pawar were identically situated, both were working in identified static post of Steward and in the case of both of them after considering their claim for grant of higher pay scale after 9 years service, they were fixed in the pay scale of Section Officer. The said fixation in the case of Yashwant Rao Pawar is found by the Labour Court, Industrial Court and this Court also to be unsustainable and when the petitioner is identically situated there is no reason for denying the said benefit to the petitioner.

Accordingly, this petition is allowed. Action of the respondents in rejecting the claim of the petitioner by passing order Annexure P-9 dated 22.7.2008 is quashed and the respondents are directed to grant benefit to the petitioner on completing 9 years of service, higher pay scale as has been granted to Yashwant Rao Pawar, i.e., by fixing him in the pay scale of Assistant Engineer and thereafter again consider petitioner''s case for grant of next higher pay scale in the scale of Divisional Engineer after completing 18 years of service as was done in the case of Yashwant Rao Pawar and if the petitioner is found entitled for the same on due consideration as per rules to grant all the benefit to him retrospectively from the date of his entitlement. Benefits to the petitioner in accordance to the aforesaid directions be granted within a period of 3 months from the date of receipt of certified copy of this order:

Necessary action for re fixation and grant of consequential benefits be also undertaken."

It is in compliance to the order passed in W.P. No. 11341/2008 that, the order impugned in present writ petition came to be filed extending the benefit of Second Higher Pay Scale w.e.f. 13.1.2004.

The controversy which now arises is whether the respondents are justified in granting the second higher pay scale, w.e.f. 13.1.2004 and not from 31.5.1997 as claimed by the petitioner.

It is contended on behalf of the petitioner that having been appointed in 1979 he was granted benefit of first higher pay scale with effect from 18.7.1989. And opted for second higher pay scale after completing 18 years of service on 29.5.1997 vide dispatch No. EE (Civil)/GH/86 dated 29.5.1997 w.e.f. 31.5.1997.

The respondent Nos. 2 and 3 relying on paragraph 2 of circular dated 19.7.1990 has to submit that since it is stipulated that an employee shall be entitled to the benefit of next higher pay scale from the date specified by them in the option, which shall not be a date earlier to the date of application and since the petitioner submitted his application seeking benefit of second higher pay scale on 13.1.2004 he has been granted benefit of second higher pay scale therefrom.

These contentions have been vehemently refuted by the petitioner. In rejoinder, in paragraph 8, it is contended by the petitioner that he submitted the representation on 29.5.1997 claiming the benefit with effect from 18.7.1997, i.e., the date when he competed 18 years. Relying on Annexure P/11, it is contended that the same was forwarded by the Executing Engineer (Civil) and yet no action was taken by the respondents. Petitioner vide I.A. No. 2897/2015 also sought direction for production of documents to establish his contention of having given the representations on 29.5.1997.

The respondents though have not denied the fact of receiving the representation dated 29.5.1997, which is substantiated from the record produced (which has been returned); it is, however, submitted that since the petitioner applied for second time in 2004, the benefit has been accorded from the date of second application.

The order dated 13.10.1987 which was in furtherance to earlier order reads thus:

Thus, clear it is from the second part of this order that immediately on completion of 9/18 years the Controlling Officer vie memorandum will inform the employee concerned of informing of his completion of requisite year who is then under obligation to opt within 30 days. In this context it being not the case of the respondents of petitioner not applying within 30 days from the issuance of memorandum on completion of 18 years, non-grant of second higher pay scale w.e.f. 31.5.1987 but from 13.1.2004 cannot be approved, because the same is not in consonance with the policy and the decision in Shri Yashwant Rao Pawar (supra). Instead, it is directed that the second higher pay scale be granted w.e.f. 31.5.1997 with all consequential benefits within three months, from the date of communication of this order. In case the benefits are not settled within three months, the petitioner shall also be entitled for interest thereon from 31.5.1997 till final settlement.

Petition is allowed to the extent above. No costs.