Vijendra Singh Bais and Others vs State of C.G. and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks quashing of the order dated 15.01.2003 (Annexure P/1) whereby the pay scale granted to the petitioners i.e. Rs. 8000-13500/- was reduced to Rs. 6500-10500/- on the objection taken in the audit conducted by the office of the Accountant General and to declare that the petitioners are entitled to receive pay scale of RS. 8000-13500/- The petitioners further pray that they may be granted promotion of rank or pay scale as they have completed 15 years of service. The facts, as projected by the petitioners are that the petitioners were initially appointed as District Legal Aid Officers (for short ''the DLAOs''), through direct recruitment on the pay scale of 425-1050 under the provisions of Madhya Pradesh Ke Kamjor Vergon Ke Liye Vidhik Sahayata Tatha Vidhik Salah Adhiniyam, 1976 (for short ''the Act 1976''). The Madhya Pradesh Legal Aid & Service Board was constituted u/s 3 of the Act 1976. The M.P. Legal Aid Board resolved that till the Board frames its rules and regulations governing its services of employees, the rules applicable on the Government Servant/Officers will govern the service conditions of the employee of the Board. On the said basis, the pay scales of the petitioners were revised from Rs. 425-1050/- and thereafter, in the pay scale of Rs. 8000-13500/- was granted to the petitioners, w.e.f. 01.01.1996 under Vth Pay Commission.

Since no rules were framed governing the service conditions of the petitioners, therefore, a writ petition was filed by the DLAOs before the High Court of Madhya Pradesh bearing No. W.P. 1549/1993, which was disposed of by order dated 12.10.1995, with a direction that the writ petition be treated as a representation and the same be decided by the Board. The said petition was considered by the Board and the pay scale of Rs. 2200-4000/- was fixed by order dated 30.01.1996 (Annexure P/3) which was granted w.e.f. 01.01.1986. Thereafter, their pay scales were revised and the petitioners were given the pay scale of Rs. 8000-13500/- w.e.f. 01.01.1996.

Shri Nair, learned counsel appearing for the petitioners would submit that before granting the pay scale of Rs. 2200-4000/- the prior sanction of the Finance Department of the State of Madhya Pradesh was obtained. Under the Rule 22 of the M.P. State Legal Services Authority Rules, 1996 (for short ''the Rules, 1996'') the officers and employee of the Board became the officers and employees of the Authorities. In the year 2000, the M.P. State Reorganization Act came into force and the new State of Chhattisgarh was formed. Thereafter, the service of 11 DLAOs were transferred to the C.G. State Legal Aid Authority. However, their final allocation was done on 03.08.2004. The M.P. Legal Services Authority had issued the impugned order dated 15.01.2003 whereunder, the petitioners were held not entitled to get the revised pay scale of Rs. 8000-13500/- but only Rs. 6500-10500/-. The impugned order was passed without affording an opportunity of hearing to the petitioners, which is Violative of the principles of natural justice. The petitioners were given the revised pay scale of RS. 2200-4000 after approval of the Finance Department of the Government of Madhya Pradesh, thereafter, the pay scale was fixed at RS. 8000-13500/- w.e.f. 1996. The petitioners have acquired the vested right to draw their pay and allowances in that pay scale which cannot be taken away subsequently. In a similar matter, the learned Division Bench of the High Court of Madhya Pradesh, in W.P. (S) No. 5858/2006, by order dated 23.03.2011, set aside the order dated 15.01.2003 and held that the DLAOs were entitled to the scale of Rs. 8000-13,500/- Thus, this petition may be allowed in the same terms.

On the other hand, Shri Moorthy, learned Deputy Advocate General appearing for the State/respondent No. 1 would submit that the relief sought by the petitioners are not directly against the respondent No. 1, however, it may be affected and suffer financial loss on account of grant given to the respondent No. 4 by the answering respondent. Shri Moorthy would contend that there were two modes of appointment of DLAO, firstly, those who were appointed after going through examination conducted by the Public Service Commission and other, i.e. the petitioners herein, who were directly appointed. Only those class II officers who were appointed through PSC were given the pay scale of Rs. 2200-4000A but the second category DLAO were given the said pay scale as per the provisions of Pay Rules, 1990. Thereafter, on account of the order passed by High Court of Madhya ''Pradesh, Gwalior Bench, in W.P. No. 1549/1993, the Executive Committee of the Board decided the placement of the petitioners in the pay scale of Rs. 2200-4000/- and sent its decision for approval to the State Government, which was accorded with a condition that the Board shall not claim extra grant from the State Government for meeting the extra expenditure. The said approval was made effective till the formation of the Rules, governing the service conditions of the employees and officers of the Board. This condition was never challenged by any of the DLAO. Thus, the Board notionally fixed their pay in the scale of Rs. 2200-4000/- w.e.f. 01.12.1995 payable in January, 1996, vide order dated 30.01.1996. The said order was challenged by some of the DLAO in W.P. No. 532/1996, which was dismissed by order dated 03.12.1996. Against the said order, the DLAOs preferred an LPA being No. 8/97, which was also dismissed. Thereafter, the Rules, 1996 came into force w.e.f. 01.04.1997 and the petitioners were paid their salary, as mentioned in para 7 of the reply. However, when an audit objection was raised and the report was examined, the respondent No. 4 passed the impugned order after considering the objections raised in the audit report and directed that the DLAOs would be paid the pay scale of Rs. 6500-10500/- and the excess amount already paid to the DLAOs be recovered. The pay scale of Rs. 8000-13500/- was granted to the petitioners by mistake, de hors the rules, thus, they are not entitled to the same. No interference is warranted with the impugned order.

Shri Ashish Shrivastava, learned counsel appearing for the respondent No. 1 would submit that after the Legal Services Authority Act, 1987 came into force, the Legal Services Authority was constituted, the then M.P. State Legal Services Authority framed rules relating to the service conditions of the DLAOs and other employees which came into force w.e.f. 01.04.1997. In the year 1998, Rule 27 was inserted thereto and a schedule was added. As per the schedule, the pay scale of DLAOs e was fixed at Rs. 2000-3500/-. All the officers including the petitioners and other employees of the Board were treated as the employees/officers of M.P. State Legal Services Authority. Accordingly, the pay of the DLAOs was fixed at Rs. 2000-3500/- and on wrong calculation, the pay scale of Rs. 8000-13500/- was withdrawn by the impugned order dated 15.01.2003 and a new pay scale was granted.

Dr. Shukla, learned senior counsel appearing with Shri Sangharsh Pandey, Advocate for the respondent No. 4 would, in addition to the above, submit that the contention of the petitioners that the audit objection was absolutely frivolous is totally misconceived. In absence of Impleadment of Joint Director, Treasuries and Accounts, the petitioners cannot allege that fitment in the revised pay scale of the officers and employees of the authorities was not examined by the Joint Director. Mere administrative approval of Hon''ble the Chief Justice and Patron-in-Chief without the approval of the State Government as regards the placement of the DLAO in the pay scale of Rs. 8000-13500/- has no overriding effect on the statutory provisions of the Rules, 1996. Shri Shukla would further deny that the Auditors had no authority to object such approval and further deny that such approval was given after obtaining approval of the Finance Department.

Ms. Renu Singh learned counsel appearing for the respondent No. 2 would submit that she has adopted the stand and reply, filed by the respondent No. 4

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The petitioners were initially appointed by the Madhya Pradesh Legal Aid Board, Bhopal, on 03.08.1982, on a pay scale of Rs. 425-1050/-. Thereafter, their pay scale was fixed at Rs. 2200-4000/w.e.f. 01.01.1986 pursuant to the order dated 24.01.1996 (Annexure P/3). Subsequent thereupon, the pay scale was fixed at Rs. 8000-275-13500/- by order dated 08.02.1999 (Annexure P/5). The petitioners have been enjoying the revised pay scale of Rs. 8000-13500/- till the impugned order dated 15.01.2003, was passed reducing the pay scale to Rs. 6500-10500/- on the ground that there was an audit objection. Needless to mention that no opportunity of hearing was afforded to the petitioners and this is also not case of the respondents that the pay scale was reduced on account of some misrepresentation or fraud, committed by the DLAOs.

The petitioners, who were initially appointed by the M.P. Legal Board and thereafter taken by the Authority, as aforestated, continued to be employees of the State Legal Services Authority till, on allocation, on carving out of the State of Chhattisgarh, they were allocated to the State of Chhattisgarh on 03.08.2004. The impugned order was passed by the, then, M.P. State Legal Services Authority, on 15.01.2003

An association of DLAOs namely Vidhik Sewa Karmik Sangh, along with one Ramesh Prasad Shrivastava, DLAO, who remained in Madhya Pradesh after allocation, filed a writ petition before the High Court of Madhya Pradesh at Jabalpur, being W.P. No. 5858/2006 (S). The facts involved in the instant case and the case of the Vidhik Sewa Karmik Sangh, are the same. All the officers were appointed together and the petitioners in the Writ Petition No. 5858/2006 (S) were also aggrieved by the order dated 15.01.2003 holding that the DLAOs were entitled to pay in the scale of Rs. 8000-13500/-. The order impugned herein has already been quashed by a learned Division Bench of the High Court of Madhya Pradesh vide order dated 23.3.2011 passed in WP No. 5858 of 2006 (S). Thus, no further adjudication is necessary and the order impugned herein, also stands quashed. I am in respectful agreement with the observations made and final order passed by the learned Division Bench of the High Court of Madhya Pradesh, while quashing the impugned order.

This court in Ramchandra Kurup Vs. State of C.G. and Others, and other connected matters, observed as under:

A common thread running into, the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span or time of wrong payment....

The petitioners were granted pay scale of Rs. 8000-13500 w.e.f. 01.01.1996 and as such, they have acquired vested right which cannot be taken away without affording proper opportunity of hearing.

The petitioners are governed by the same terms and conditions as there is no alteration/modification in their terms and service conditions after they have joined the State of Chhattisgarh, on allocation. Accordingly, the order dated 15.01.2003 (Annexure P/1) which is also applicable in the case of State of Chhattisgarh, is quashed. Resultantly, the writ petition is accordingly allowed with all consequential benefits.

No order as to costs.