Madhya Pradesh High Court
Rai Singh Yadav vs The State Of Madhya Pradesh on 7 December, 2023
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUJOY PAUL
ON THE 7 th OF DECEMBER, 2023
WRIT PETITION No. 25271 of 2021
BETWEEN:-
RAI SINGH YADAV S/O LATE SHRI JAGMAL SINGH
YADAV, AGED ABOUT 61 YEARS, OCCUPATION:
WORKING AS INSPECTOR OFFICE OF
SUPERINTENDENT OF POLICE SEHORE POSTED AT
POLICE STATION SHYAMPUR DISTT. SEHORE NEAR
SHIV MANDIR AWADHPURI SEHORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI MANOJ KUMAR CHANSORIYA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY HOME DEPARTMENT
MINISTRY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS DISTT-BHOPAL(MP) (MADHYA
PRADESH)
3. SUPERITENDENT OF POLICE POLICE
HEADQUARTERS DISTT-RAISEN(MP) (MADHYA
PRADESH)
4. SUPERITENDENT OF POLICE, SEHORE POLICE
HEADQUARTERS DISTT-SEHORE(MP) (MADHYA
PRADESH)
5. DISTRICT PENSION OFFICER DIRECTORATE OF
P E N S I O N DISTT-SEHORE(MP) (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI DEEPAK SAHU - PANEL LAWYER)
Signature Not Verified
Signed by: PARITOSH
KUMAR
Signing time: 12/8/2023
10:46:47 AM
2
WRIT PETITION No. 29102 of 2022
BETWEEN:-
MANOHAR LAL YADAD (DEAD) S/O LATE SHRI OMKAR
YADAV OCCUPATION: INSEPCTOR THROUGH ITS
LEGAL REPRESENTATIVE HIS WIFE NAMELY
RAMESHWARI YADAV W/O LATE MANOHAR LAL
YADAD AGED ABOUT 60 YEARS HOUSEWIFE R/O
DISTRICT RESERVE POLICE LINE , SEHORE DISTRICT
SEHORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANOJ KUMAR CHANSORIYA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY HOME DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS BHOPAL (MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE SEHORE DISTRICT
SEHORE (MADHYA PRADESH)
4. DISTRICT PENSION OFFICER SEHORE DISTRICT
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DEEPAK SAHU - PANEL LAWYER )
This petition coming on for admission this day, th e court passed the
following:
ORDER
With the consent, both the matters are heard analogously and decided by
this common order.
2. Facts are taken from W.P. No.25271 of 2021. The petitioner while
working on the post of Sub Inspector retired on attaining the age of
superannuation on 31.01.2021. After retirement when his pension papers were
processed, the Treasury raised an objection in his service book (page-24). In
furtherance thereof, the Superintendent of Police, Sehore by order dated
03.11.2021 (Annexure P/4) decided to reduce the pay scale with retrospective
effect and directed recovery w.e.f. 01.04.2006.
3. In the connected W.P. No.29102 of 2022, the same course was
adopted although date of retirement etc. are different. The fact remains that
petitioner of this case died during the pendency of this case and his widow is
substituted as legal representative.
4. Learned counsel for the petitioner submits that Treasury has raised
objection pursuant to a clarification dated 13.11.2009 (Annexure P/8). The
clarification no.3 became reason for withdrawal of benefits and consequential
recovery. This clause-3 of the aforesaid circular came to be challenged before
this Court in W.P. No.13556 of 2014 ( H.P. Parashar vs. State of M.P. &
others) decided on 31.07.2015. This Court held that act of clarification by
Finance Department is arbitrary and illegal and violative of Article 14 & 16 of
the Constitution. A Co-ordinate Bench in W.P. No.18091 of 2016 ( Madan
Singh Rajpoot vs. The State of Madhya Pradesh and others) decided on
10.04.2018 (Annexure P/13) followed the same. Since the impugned action is
founded upon the said clarification No.3, which could not sustain judicial
scrutiny, the impugned action be declared illegal and benefits already granted be
restored.
5. The another limb of argument of Shri Manoj Chansoriya, learned
counsel for the appellant is based on another judgment of this Court passed in
W.P. No.16670 of 2007 ( Janki Prasad Dwivedi vs. State of Madhya Pradesh)
decided on 06.11.2017 wherein this Court opined that after retirement of an
employee, the Treasury Office has no authority to take away the benefits of
order of grant of Kramonnati / time scale of pay which was granted by the
competent authority.
6. Per contra, Shri Deepak Sahu, learned Panel Lawyer opposed the
prayer and submits that para-11 of order of H.P. Parashar (supra) nowhere
shows that clarification was set aside or declared as unconstitutional. On a
specific query from the Bench, he categorically admitted that the whole
impugned action is founded upon clarification No.3. However, he submitted
that the process of recovery and determination began when petitioner was
already in employment.
7. No other point is pressed by the learned counsel for the parties.
8. I have heard the parties at length and perused the record.
9. Before dealing with rival contentions, it is apposite to quote para-11
of the order passed in H.P. Parashar (supra), which reads thus -
"11. In my opinion, by the act of clarification, the Finance
Department has created two class of employees i.e. on
class who are eligible to get benefit of second time scale
pay, if they are promoted on a post which is partially by
direct recruitment and partially by promotion and IInd class
of employees who are promoted on a post which is 100%
promotional post. It has created class within the class and
due to the aforesaid anomaly the juniors were getting higher
pay scale in comparison to the Seniors. The act is
arbitrary, illegal and violative of Article 14 & 16 of the
Constitution of India."
10. A microscopic reading of para-11, leaves no room for any doubt
that clarification No.3 was held to be an 'act' which is found to arbitrary, illegal
and violative of Article 14 & 16 of the Constitution. Once it is declared
unconstitutional, whether or not it is specifically set aside by the Court, in my
considered view, said clarification No.3 cannot be a reason to give stamp of
approval to the impugned action. In other words, clarification No.3 is deemed
to be set aside once it is declared as arbitrary, illegal and unconstitutional.
Thus, I am unable to persuade myself with line of argument of Shri Deepak
Sahu, learned Panel Lawyer. It is not in dispute that order of H.P. Parashar
(supra) was followed by the Co-ordinate Bench in Madan Singh Rajpoot
(supra). Since it is not in dispute that impugned action of withdrawal of
benefits and consequential recovery is founded upon clarification No.3, it
cannot sustain judicial scrutiny. The impugned order and action is liable to be
interfered with on yet another ground. The benefit of time scales of pay were
given to the petitioners/employees by issuing orders in their favour by the
competent authority at the relevant point of time. This is a matter of common
knowledge that the benefit of time pay scale is granted after recommendation of
Screening Committee / DPC. The said order of competent authority cannot be
declared as illegal by the pension payment authority / Treasury. Treasury has
no authority, jurisdiction and competence to nullify the orders passed during the
tenure of an employee by the competent authority. Thus, impugned order and
action is liable to be set aside on this ground also.
11. As a result, the impugned order and action is declared as illegal
and accordingly set aside. If respondents have already recovered the amount,
same shall be returned to the petitioner within a period of 90 days from the date
of production of copy of this order. The petitioners will reap all consequential
benefits as if impugned orders were never passed.
12. Petitions are allowed.
(SUJOY PAUL)
JUDGE
PK
