S.C. Goyal vs State of Madhya Pradesh and Others

Rajendra Menon, J.—The petitioner, who was working as a Branch Officer has filed this petition being aggrieved by the fact that they have been paid salary in the scale of Rs. 2000-3500/- though he is claiming fixation and benefit of the salary in the scale of Rs. 8000-13500/- in accordance with the circular of the State Government dated 27.8.1990 and the decision of this Court rendered in the case of Jindal Singh Veer v. State of M.P. and Others, (W.P. No. 968/1996) decided on 23.7.1998 and Vivek Diwan and others v. State of M.P. and others, (W.P. No. 2870/2001) decided on 10.3.2004. The brief facts, leading to the filing of the present petition are that the petitioner was working on the post of Estate Manager/Branch Officer. It is stated that the pay scale of the aforesaid post was Rs. 450-1150/- in the year 1981 which was subsequently revised to Rs. 1000-1920/- by the Chaudhary Pay Commission and thereafter to Rs. 1820-3300/-. It is submitted that as the scale of Rs. 1820-3300/- was applicable to several posts including the post of Assistant Architect. Assistant Engineer, Estate Manager, Branch Officer, Public Relation Officer, etc. etc., therefore, while implementing the recommendations of the Vohra Pay Commission with effect from 1.1.1990, these posts were bifurcated and while the higher scale of Rs. 2200- 4000. - was prescribed for the posts of Assistant Architects and Assistant Engineers, a lower scale of Rs. 2000-3500/- was prescribed for Estate Manager/Branch Officer and others. However, as several practical problems and complications arose in the implementation of the aforesaid bifurcated scale and as representations seeking clarification were sought from the State Government, the State Government issued a circular on 27.8.1990 clarifying the fact that the higher scale of Rs. 2200-4000/- would be applicable to all those posts which were required to be filled up by direct recruitment and promotion both, while the lower scale of Rs. 2000-3500/- would be applicable to those posts which were to be filled up 100% by promotion.

It is submitted by the learned counsel for the petitioner that Shri Jindal Singh Veer and Shri P.K. Sonwane who were directly recruited as Estate Managers filed W.P. No. 968/1996 before this Court claiming higher scale of Rs. 2200-4000/- in accordance with the circular of the State Government dated 27.8.1990 on the ground that they were recruited directly on the post of Estate Manager and, therefore in view of the circular of the State Government dated 27.8.1990 they were entitled to the higher scale. The aforesaid petition filed by them were allowed by this Court by 23.7.1998 in the following terms:-

The respondents in their return have denied the contention and submitted that there are as many as 23 Estate Managers serving in the MP. Housing Board and their pay is fixed in the scale of pay of Rs. 2000-3500/-. If the pay-scale of Rs. 2000-3500/- is enhanced, it will adversely affect the Board and discrimination.

In the return the respondents have not listed why and in what manner pay-scale of the petitioner is fixed at Rs. 2000-3500/-. No documents have been filed by the respondents to demonstrate that the pay scale of Estate Officers, who were directly recruited with the approval of the M.P. Public Service Commission, is rightly fixed at Rs. 2000-3500/-. Circular (Annexure-P/10) specifically provides that where the posts are filled by direct recruitment i.e., through Public Sen-ice Commission, fully or in part, the pay scale of Rs. 2200-4000/- shall be payable and where the posts are filled 100% by promotion, the revised pay-scale shall be at Rs. 2000-3500/-.

In the present case, the petitioner was directly recruited and his appointment was approved by the M.P. Public Service Commission, therefore, his pay could not have been fixed in the pay-scale of Rs. 2000-3500/- and as per the circular dated 27.8.90 (Annexure-P/10) the petitioner is entitled for fixation of his pay at Rs. 2200-4000/-.

In the result, the petition succeeds and is allowed. The respondents arc directed to fix the pay of the petitioner in the pay-scale of Rs. 2200-4000/- and shall pay all the arrears within a period of six months from today. There shall be no order as to costs. Outstanding security amount be refunded to the petitioner.

It is pointed out that in view of the decision rendered by this Court in the case of Jindal Singh Veer (supra), one Vivek Diwan (supra) and several others who were promoted as Estate Manager have filed W.P. No. 2870/2001 claiming similar benefit and fixation in the scale of Rs. 2200-4000/-. This petition was allowed by order dated 10.3.2004 in the following terms:-

The fact has not been disputed that State Govt. has not accorded approval to the amendment which was proposed by the M.P. Housing Board to the State Government. Matter has been referred to the State Govt. for approval but so far approval has not been accorded. The Regulations called M.P. Housing Board Services Class I and II Recruitment and Service Regulations, 1992 were framed. Draft amendment was prepared which was approved by the Housing Board in its meeting. A perusal of 144th meeting of Board of Directors indicates that the proposed revision of Regulations of 1992 is pending consideration before the State Govt. with effect from 11.8.92, as the matter has been kept pending by the State Govt. for enormous time, consequently the board itself has resolved that revision has become irrelevant. As such fresh revision was undertaken in the year 1999 which was also submitted for approval before the State Govt. Approval to that has not been granted so far is the common ground. It is not in dispute that in the unamended existing Regulations, post of Estate Manager/Branch Officers have to be filled 25% by direct recruitment, 75% by way of promotion and it is clearly provided in the circular (P. 5 - R. 4) dated 27th August, 1990 that in case any class IInd existing post is filled completely/partly by direct recruitment, pay-scale of Rs. 2200- 4000/- has to be made applicable. In my opinion, rigour of Section 103 of the Adhiniyam comes into play. Sub-Section (3) of Section 103 of the Adhiniyam reads thus:-

103(3) No regulation or its cancellation or modification shall have effect until the same shall have been approved and confirmed by the State Government.

It is clear that no regulation or its cancellation or modification shall have effect until the same shall have been approved and confirmed by the State Government. As such the amendment made in the regulation is not operative and to delete the provision of 25% by way of direct recruit is not incorporated, the provision remains in the Regulation; it is different question whether Board has on its own not resorted to the direct recruitment. The act of the Board in not resorting to the direct recruitment cannot have the effect of amending and bringing into effect, amended Regulations by which the posts are to be filled 100% by direct recruitment. As the approval which is condition precedent u/s 103(3) has not been accorded approval so far by the State Govt., in my opinion, the amended regulation cannot come into effect. The resolution passed in 144th meeting of the Board of Director also recognizes rightly that as State Govt. has not accorded approval the amendment proposed has become irrelevant.

Thus, on the strength of circular (P. 5), the revision of Pay Rules, further in view of the existing Regulations under which the post of Estate Manager/Branch officer has to be filled 25% by direct recruitment and 75% by way of promotion, the petitioners cannot be denied the benefit of the pay-scale of Rs. 2,200-4,000/- as clarified in circular (P. 5 - R. 4) dated 27th August, 1990, thus, they are held entitled for the pay in scale of Rs. 2200-4000/-. In W.P. No. 968/96 (Jindel Singh Veer v. Sate of Madhya Pradesh and 2 others) decided on 23.07.98 by esteemed brother Shri S.S. Jha J. sitting at Gwalior Bench, this court has granted the relief in similar circumstances. Question has been considered thus:-

The document is filed as Annexure P/IXX. The only question involved in the case is whether the petitioner, who is directly, recruited, will be eligible to get the pay-scale of Rs. 2200-4000. Counsel for the petitioner submitted that his selection shall be deemed to be by the M.P. Public Service Commission finally as his appointment was approved by the M.P. Public Service Commissioner.

The respondents in their return have denied the contention and submitted that there are as many as 23 Estate Managers serving in the MP. Housing Board and their pay is fixed in the scale of pay of Rs. 2000-3500/-. If the pay-scale of Rs. 2000-3500/- is enhanced, it will adversely affect the Board and discrimination.

In the return the respondents have not stated why and in what manner pay-scale of the petitioner is fixed at Rs. 2000-3500/-. No documents have been filed by the respondents to demonstrate that the pay-scale of Estate Officers, who were directly recruited with the approval of the M.P. Public Service Commission, is rightly fixed at Rs. 2000- 3500/-, Circular (Annexure-P/10) specifically provides that where the posts are filled by direct recruitment i.e. through Public Service Commission, fully or in part, the pay-scale of Rs. 2200-4000/- shall be payable and where the posts are filled 100% by promotion, the revised pay-scale shall be at Rs. 2000-3500/-.

Thus, the petitioners are held entitled for the salary in the pay scale of Rs. 2200-4000/-. Consequently, the order (P-2) of the rejection of the representations of the petitioners falls down and is hereby quashed.

It is submitted by the learned counsel for the petitioner that the present petitioner is similarly and identically situated as Vivek Diwan and others (supra) and, therefore, in view of the decision of this Court rendered in their case as well as the circular of the State Government dated 27.8.1990, the petitioner is entitled to salary in the scale of Rs. 2200-4000/-.

It is also stated before this Court that subsequently the scale of Rs. 2000-3500.- has been revised to Rs. 6000-10,500/- and the scale of Rs. 2200-4000/- has been revised to Rs. 8000-13500/- by the Fifth Pay Commission w.e.f. 1.1.2001. It is submitted that the same fact situation as it existed on the date of decision in the case of Vivek Diwan (supra) regarding amendment in the regulation still continues to exist even today and the old regulation providing for filling up the post of Estate Manager/Branch Officer by 25% direct recruitment and 75% by promotion still exists and, therefore, similar relief be granted to the petitioner.

It is further pointed out that the petitioner had approached the respondent authorities by filing a representation claiming the aforesaid relief which is pending and has not been decided till date though he is working on the same post and is performing the same duty belonging to the same cadre. Being aggrieved by the non-consideration of his representation and payment of salary in the lower scale, the petitioner has filed the present petition.

The learned Senior Counsel for the respondents vehemently opposes the petition filed by the petitioner and submits that the orders passed by this Court in the case of Jindal Singh Veer (supra) and Vivek Diwan (supra) are not applicable to the petitioner inasmuch as the petitioner was promoted on the post of Estate Manager Branch Officer in the year 2006 when the scale prescribed for the said post was revised to Rs. 6500-10500/- and therefore, the petitioner is only entitled to the scale which was prescribed on the date of their promotion.

It is further submitted that the respondents have not made any appointment on the post of Estate Manager Branch Officer by way of direct recruitment since the year 1998 and therefore, as the aforesaid posts arc being filled up 100% by promotion, therefore, the lower scale i.e. Rs. 2000-3500/- as revised to Rs. 6500-10500/- is applicable to the petitioner and not the higher scale of Rs. 2200-4000/- as revised to Rs. 8000-13500/-.

It is further submitted that in any case as the regulation providing for filling up posts of Estate Manager/Branch Officer by 25% direct recruitment and 75% promotion was itself never approved by the State Government, therefore, the amendment made in the said regulation could have been implemented by the respondents even without having obtained approval from the State as the provisions of Section 103(3) of the Madhya Pradesh Grih Nirman Mandal Adhiniyam, 1972 would not be attracted in such a situation and, therefore, the petition filed by the petitioner being misconceived deserves to be dismissed.

I have heard the learned counsel for the parties at length. From a perusal of the decision rendered by this Court in the case of Jindal Singh Veer (supra) and Vivek Diwan (supra), it is clear that the issue regarding amendment of the regulations; their non-approval by the State Government and the practice of filling up the post of Estate Manager/Branch Officer only by promotion adopted by the respondents, etc., were all considered therein and thereafter this Court in the case of Vivek Diwan (supra) in paras 9 to 12 of the judgment allowed the petition filed by Vivek Diwan and others (supra) by recording a finding to the effect that the regulation providing for filling up the post of Estate Manager/Branch Officer 25% by direct recruitment and 75% by promotion was still in existence; that the said regulation was and do not stand amended as the subsequent proposal of the respondents proposing to amend the regulation by providing for filling up the post 100% by promotion, was not approved and the fact that the respondents had, on their own, resorted only to promotion would not and cannot have the effect of amending or bringing into effect the amended regulations providing for filling up the posts 100% by promotion in the absence of approval by the State Government which is a condition precedent as provided by Section 103(3) of the Adhiniyam 1972. In the case of Vivek Diwan (supra) this Court further held that as the regulation provided for filling up the posts 25% by direct recruitment and 75% by promotion continued to exist and remain operative, therefore, in view of the circular issued by the State Government dated 27.8.1990 the petitioners were entitled to the benefit of higher scale of Rs. 2200-4000/-.

It is also undisputed that the orders passed by this Court in Jindal Singh Veer (supra) and Vivek Diwan (supra) have not been assailed or challenged by the respondents and have been implemented by them by order dated 14.6.2004 and infact all the Estate Managers/Branch Officers except the petitioner are now drawing salary in the scale of Rs. 8000-13500/- which is the revised scale of Rs. 2200-4000/-.

From a perusal of the circular of the State Government dated 27.8.1990, a copy of which has been filed by the respondents alongwith the return as Annexure R-3 in the connected W.P. No. 170/2008(S), it is clear that the State Government by the aforesaid circular has clarified that the scale of Rs. 2200-4000/- would be applicable to those posts which arc to be filled up by direct recruitment and promotion both while the lower scale of Rs. 2000-3500/- would be applicable to those posts which arc to be filled up only by promotion made through the Departmental Promotion Committee. On a specific query being made, it is stated by the learned counsel for the parties that even today though the respondent Board has made several requests to the State Government for approval of the amendment proposed in the regulation providing for filling up the post of Estate Manager/Branch Officer 100% by promotion, no approval thereof has been granted and, therefore, the situation as it existed at the time of decision in the case of Vivek Diwan (supra) still exists.

In view of the aforesaid facts, I am of the considered opinion that the decision of this Court rendered in the case of Vivek Diwan (supra) is fully applicable to the case of the petitioner as his case is identical. I am also of the considered opinion that two pay scales for the same post, i.e. one scale for those who arc appointed as Estate Managers/Branch Officers by direct recruitment and another scale for those who are appointed as Estate Managers/Branch Officers by promotion is neither envisaged nor is permissible, therefore, all persons holding the posts of Estate Manager/Branch Officer whether they are directly recruited or promoted are entitled to the same scale and as the State Government by circular dated 27.8.1990 has clarified that posts which are to be filled up by direct recruitment and promotion both would carry higher scale of Rs. 2200-4000/-, therefore, the petitioner is also entitled to the scale of Rs. 2200-4000/- or the corresponding revised scale as revised from time to time as is being paid to Shri Vivek Diwan and others (supra) who are similarly situated.

In the facts and circumstances of the case, I am of the considered opinion that the petitioner cannot be denied proper fixation of the scale as has been held by this Court in the case of Vivek Diwan (supra) simply on account of the fact that he was promoted in the year 2006 moreso in view of the fact that the revised scale of Rs. 8000-13500/- corresponding to the revised scale of Rs. 2200-4000/- had come into effect from 2001 and was already in existence on the date when the petitions filed by Vivek Diwan and others (supra) were decided by this Court on 1.3.2004 and as a natural consequence thereof Vivek Diwan and others (supra) were entitled and paid salary in the scale of Rs. 2200-4000/- as revised from time to time.

In view of the aforesaid, I am also of the view that the scale prescribed for the post of Estate Manager/Branch Officer as on the date of the promotion of the petitioner was the revised scale of Rs. 2200-4000/- i.e. Rs. 8000-13500/- and not Rs. 6500-10500/- as stated by the respondents.

In view of the decision rendered by this Court in the cases of Jindal Singh Veer (supra) and Vivek Diwan (supra) and the circular of the State Government dated 27.8.1990, the petition filed by the petitioner is hereby allowed. The petitioner shall accordingly, be entitled to all consequential benefits. In the facts and circumstances of the case there shall be no order as to the costs.