Naveen Kumar Tiwari and Others vs State of Madhya Pradesh and Others

R.K. Gupta, J.—Since in all these writ petitions common questions of law and fact are involved, therefore, they were heard analogously and decided by this singular order.

There is no dispute between the parties that all the petitioners those, who are working on the post of Amin, were recruited after their selection by the Junior Service Selection Board in the year 1988. At the time of their appointments they were given the pay scale of Rs.775-1200. It is contended by the petitioners that they are entitled to be given the pay scale of Rs.870-1420. It is also not disputed that the revised pay scale of Rs.515-800 in pursuance of Notification issued by the State Government which is known as M.P. Revision of Pay Rules, 1983, was made applicable to the Patwaris, those who were higher secondary with Patwari Training Certificate pass. The said Notification came into force with effect from 1.4.1981.

The Amins (not having the training) appointed after 5.3.1983 since were not given the corresponding revised pay scale, therefore, they preferred a petition before this Court. The question with regard to the grant of a higher pay scale (Rs.8701420) under the M.P. Revision of Pay Rules, 1983 was referred to for its decision by the Full Bench. Copy of the judgment passed by the Full Bench of this Court in Om Prakash v. State of Madhya Pradesh and Ors. 1988 M.P.L.J. 473, is filed as Annexure A-3 in W.P. No. 12785/2003 (O.A. No. 1835/98).

The Full Bench of this Court interpreted the Note appended to the M.P. Revision of Pay Rules. It will be proper to refer to the Note which was appended to the M.P. Revision of Pay Rules, 1983, which reads as under:

Annexure-II Part-B (See Rule 3)

Other posts on different departments which have been given revised scales other than corresponding scales or given selection grade in revised scales showing existing scales and their revised scales.

S. No. Name of Post Existing Revised Remarks Scale Scale IRRIGATION 4. Amin (1) 155-252 515-800 For those who are Higher (2) 139-200 Secondary with Patwari Training Certificate pass. Other existing incumbents to get the corresponding revised pay scale.

The Full Bench of this Court in the aforesaid judgment interpreted the said Note and after interpreting the same the following law was laid down:

According to this note, Amins with Higher Secondary with Patwari Training Certificate pass will get the scale of pay of Rs.515-800 while other Amins to get the corresponding scales of pay of Rs.485-740 and 445-635 and the note is applicable only to the existing incumbents in actual service prior to 5-3-1983. They have been divided in two classes on the basis of qualifications, those with higher qualifications were given higher scale of pay and those with lesser qualifications were to be placed in lesser scale of pay which has been held to be against the right of equality enshrined under Article 14 of the Constitution and there can be no discrimination and two scales of pay for the post in the same cadre cannot be allowed to stand particularly when earlier both the categories were drawing the same scale of pay. It is not necessary for us to consider what scale of pay is payable to the Amins appointed from 5-3-1983 or thereafter and as to whether they can be given different pay scales than the Amins doing the same job who were appointed earlier. That will be for the Division Bench to consider. That question has not been referred to us. Therefore, it is held that the observations in Laxminarayan Upadhyaya''s case (supra) that higher scales of pay of Rs.515-800 will be operative for those incumbents who have joined their services with effect from 5-3-1983 and who are Higher Secondary with Patwari Training Certificate pass was not a matter in issue in that petition nor it was required to be decided and is, therefore, obiter and not binding on the Division Bench which is now required to decide this question.

From the aforesaid, it is clear that there had been two pay scales of the Amins. The Amins, those who were having Higher Secondary pass with Patwari Training Certificate, were to get pay scale of Rs.515-800 (Revised Rs. 870-1420) and so far as other Amins are concerned, those who were not having aforesaid qualification, they were to get pay scale of Rs.485-740 and 445-635 (Revised Rs. 7751200). The two different pay scales were based upon the educational qualification.

The Full Bench ultimately held that higher scale of pay will be operative for those incumbents who have joined their services with effect from 5.3.1983. After deciding the question of law by the Full Bench the matter was referred to the Division bench. The Division Bench, thereafter, in paragraphs 2 and 3 of its judgment, which is Annexure A-4, held as under:

In view of the aforesaid opinion of the Full Bench, the note must be held as wholly in applicable to those Amins who are appointed after the scale of pay of Amins was revised to Rs.515-800. The note will only govern those Amins who were already in service on that date, i.e., on 5.3.1983 when the pay scale was revised. Since admittedly the petitioners were appointed as Amins after that date, the note will not govern their cases and they will be entitled to the scale of pay of Rs.515-800 and not to any other lower scale of pay.

Thus, the Division Bench held that the pay scales of Rs. 515800 will be applicable to class of persons those who were employed after 5.3.1983 and was not applicable to the class of service those who were appointed before 5.3.1983.

Under the circumstances, the Division Bench held that the pay scale of Rs. 515-800 shall be held applicable to such class of persons those who were already in service. On the basis of the aforesaid judgment passed by the Full Bench and the Division Bench, the claim of the petitioners in the present petitions is that since they are the appointees after 5.3.1983, therefore, in terms to the judgment passed by the Full Bench and also by the Division Bench, as aforesaid, they are entitled to be given the pay of Rs.515-800 and are further entitled to the corresponding revision of the said pay scale. It is contended that the corresponding revision of the pay scale of Rs.515-800 is Rs.8701420 and accordingly the said pay scales should have been given by the respondents at the time of appointment to the petitioners. As a necessary corollary the same, it is contended that the grant of pay scale to the petitioners of Rs.775-1200 is not in terms to the law laid down by the Full Bench of this Court and also the law laid down by the Division Bench.

Learned Counsel appearing on behalf of the respondents submitted and relied upon the judgment passed by the Apex Court in M.P. Rural Agriculture Extension Officers Association Vs. State of M.P. and Another, and on that basis it is submitted that there can be two pay scales for the same post and grant of higher pay scale if given on the basis of the educational qualification and the persons those who have not acquired training and have no requisite qualification they can be paid lower pay scale.

In support of this argument, learned Counsel for the respondents relied upon para-20 of the Apex Court judgment in M.P. Rural Agriculture Extension Officers Association (supra). The same is reproduced as under:

The aforementioned decisions are authorities for the proposition that despite the fact that the employees have been performing similar duties and functions and their posts are interchangeable, a valid classification can be made on the basis of their educational qualification....

On this basis, learned Counsel for the respondents further submitted that there is no arbitrariness in the action of the respondents in prescribing two different pay scales for the post of Amins, which is based upon the educational qualification and training.

It is also contended that the State Government in exercise of its powers conferred by proviso to the Article 309 of the Constitution of India, amended the M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969. The said amendment was published in the Official Gazette of Madhya Pradesh on 12.1.1990. The said Notification has been filed by the respondents in W.P. No. 7468/2003 (O.A. No. 1298/92). The State Government by the aforesaid amendment in the recruitment Rules in Schedule-II held as under:

(3) In Schedule-II, under the heading Class-II (Executive):

(a) In column (5), against the item "Amin" for the existing entries the following entries shall be substituted, namely:

(1) Higher Secondary School Certificate Examination or High School Examination under the 10+2 system from a recognized Board.

(2) Qualified in patwari''s training.

(b) In column (6) against the item "Amin" the following shall be inserted, namely:

The qualification prescribed for the post of Amin will not be operative to those who were appointed before 5.3.1983.

On the basis of the aforesaid, qualification for the post of Amin has been substituted by the said notification and qualification prescribed is the Higher Secondary School Certificate examination or High School Examination under the 10+2 system from a recognized Board. It also provides ''qualified in Patwari''s training''. In column No.6 against the Item ''Amin'' the qualification was also inserted by the said Notification and according to the same, the qualification prescribed for the post of Amin will not be operative to those who were appointed before 5.3.1983. On this basis, it is clear that the qualification by way of amendment in the Recruitment Rules published in the official Gazette on 12.1.1990 prescribed for the post of Amin will not be operative to those who were appointed before 5.3.1983 but shall be applicable to the Amin appointed after 5.3.1983.

In the present case, all the petitioners/applicants are the appointees after 5.3.1983, therefore, their appointments shall be regulated with reference to the educational qualification as prescribed by way of amendment in the M.P. Irrigation Department (Non- Gazetted) Service Recruitment Rules, 1969. This is also the admitted position that none of the petitioners are having their educational qualification as prescribed under the amended recruitment rules. They do not have the Patwari training with them. In this reference it would be profitable to understand the Full Bench judgment (supra) of this Court.

The Division Bench has interpreted the judgment passed by the Full Bench and held that note which was appended in the M.P. Revision of Pay Rules, 1983 must be held as wholly inapplicable to those Amins who are appointed after the pay scale of Amin was revised to Rs.515-800. The note will only govern the incumbents who are already in service on the date i.e. on 5.3.1983 when the pay scale was revised. Since the petitioners, before the Full Bench and also before the Division Bench, were the appointees after 5.3.1983, therefore, it was held that said note shall have no application to class of Amins appointed after 5.3.1983. The Full Bench and also the Division Bench have already held that the note with regard to two pay scales to different qualifications, which is reproduced in the earlier paragraphs, will be applicable to only class of persons those who were already in service prior to 5.3.1983. In this reference, the amendment made in M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969 has to be interpreted, which was not the subject matter before the Full Bench and could not be. As discussed earlier, the State Government by the said amendment in the Rules of 1969 provided that the qualification prescribed for the post of Amin was not made operative to those who were appointed before 5.3.1983 but the Rule was made operative to such class of persons appointed as Amins after 5.3.1983. Thus, the qualification which was inserted by way of said amendment in 1990 related back to 5.3.1983. The qualification which is prescribed i.e. qualified in Patwari training and also the Higher Secondary School Certificate examination or High School Examination under the 10+2 from the recognized Board. The qualification by way of amendment was made on 12.1.1990 is made operative also to such class of persons who were appointed even after 5.3.1983 then the petitioners cannot claim the benefit of the law laid down by the Full Bench and the Division Bench of this Court where the law was laid down that qualification shall only be applicable to such class of persons those who were already in service and shall not be operative to those who were appointed after 5.3.1983. The effect of the amendment is retrospective one and in view of the Notification dated 12.1.1990 wherein the Rules were amended by the State Government in exercise of its power conferred by the proviso to Article 309 of the Constitution of India.

In view of the amendment in the M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969 brought into force with effect from 12.1.1990 and made effective to such class of persons those who were appointed after 5.3.1983, the State Government was justified in prescribing two different pay scales on the basis of the educational qualification. The persons having qualification shall be entitled to the pay scale of Rs.515-800 (Rs.8701420) and the corresponding revision of the same. The persons those who are not having the requisite qualification fixed under the recruitment rules shall entitled to get the lower pay scale i.e. Rs.7751200. The lower pay scale was already prescribed.

Under the circumstances, the petitioner cannot be held to be the similarly placed persons and cannot claim any parity with the class of persons those who were before the Full Bench and the Division Bench of this Court in whose favour the claim was allowed.

No other point is argued.

In view of the aforesaid discussion, no case for interference is made out and all these writ petitions are dismissed.