Gangaram Gautam vs Home Department (Police)
2023 Latest Caselaw 10874 MP

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                 ON THE 14 th OF JULY, 2023
                                             WRIT PETITION No. 16054 of 2018

                           BETWEEN:-
                           GANGARAM GAUTAM S/O SHRI MANGILAL GAUTAM,
                           AGED ABOUT 47 YEARS, OCCUPATION: SERVICE
                           (ASSISTANT SUB INSPECTOR RADIO) R/O POLICE
                           RADIO    HEADQUARTER,  MANDSAUR    (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI ANAND SINGH BAHRAWAT - ADVOCATE)

                           AND
                           1.    STATE OF M.P. THROUGH SECRETARY TO GOVT
                                 OF M.P. HOME DEPARTMENT (POLICE) VALLABH
                                 BHAWAN, BHOPAL (MADHYA PRADESH)

                           2.    DIRECTOR DIRECTORATE OF LOCAL FUND
                                 AUD IT, SATPURA BHAWAN, BHOPAL (MADHYA
                                 PRADESH)

                           3.    JOINT DIRECTOR DIRECTORATE OF LOCAL
                                 FUND AUDIT REGIONAL OFFICE, ABOVE RTO
                                 OFFICE, THIRD FLOOR, BHARATPURI, UJJAIN
                                 (MADHYA PRADESH)

                           4.    SUPERINTENDENT OF POLICE (RADIO) UJJAIN
                                 ZONE,POLICE LINE CAMPUS UJJAIN (MADHYA
                                 PRADESH)

                           5.    ACCOUNTANT GENERAL (A AND )II 129, LEKHA
                                 BHAWAN, JHANSI ROAD, (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           (BY MS. BHARTI LAKKAD - G.A.)

                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 14-07-2023
18:37:25
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                                                                  ORDER

With the consent of the parties, the matter is heard finally.

2. Counsel for the petitioner submits that the present petition is squarely covered by the order passed by co-ordinate Bench of this Court at Jabalpur in W.P. No.7091/2020 (Chiran Sumer Vs. State of M.P. and others) and other connected batch of petitions, Annexure P-9.

3. The present petition has been filed under Article 226 of the Constitution of India challenging the recovery of the amount from the petitioner and to quash all consequential actions on the basis of the aforesaid impugned orders. The petitioner has prayed for return of the said recovered amount (if

any).

4. Facts of the case are that the petitioner was initially appointed on the post of Constable (Radio) and, thereafter, he was promoted as Head Constable (Radio) and again promoted as Assistant Sub-Inspector (Radio) in Police department. At present he is working on the post of Assistant Sub-Inspector (Radio). The respondents passed the impugned order of recovery mainly on the ground that the petitioner was wrongly given the pay scale as he has already got the promotion and, therefore, in view of the circular dated 13/11/2009, Annexure R-1, the petitioner was not entitled for first time bound pay scale in his salary.

5. Counsel for the petitioner submits that the aforesaid circular has already been quashed by this Court in the case of Pratap Narayan Vishwakarma Vs. State of M.P. and others, 2016 (4) MPLJ 491. In that case, after considering the submissions made by the parties the writ petition was allowed mainly on the ground that the circular dated 13/11/2009 by which the previous circular dated 1/4/2008 was clarified, could not be applied to the case Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 14-07-2023 18:37:25

of the petitioner as the said circular was prospective in nature. The circular was quashed being discriminatory and violative of provisions of Article 14 of the Constitution of India. The order dated 16/1/2017 was challenged by way of intra Court appeal in Writ Appeal. The said appeal was dismissed by order dated 13/3/2018. The relevant paras of the order passed by the Division Bench reads as under :-

"4.After considering the submission made by the parties the learned single judge has allowed the writ petition mainly on the ground that the circular dated 13/11/2009, by which the previous circular dated 1/4/2008 was clarified would not apply to the case of the present writ petitioner as the same circular has got only prospective effect.

5.In the case of Pradeep Narayan Vishwakarma (supra) this Court has quashed the circular dated 13/11/2009 being violative of the provisions of Article 14 of the Constitution of India and the same has been held to be discriminatory and creating a class within a class. It has not been pointed out that the judgment passed in the case of Pradeep Narayan Vishwakarma (supra) has been over ruled. Since the circular dated 13/11/2009 itself has been held to be void and has been quashed by this Court the contention of the appellants cannot be accepted that the writ petitioner is not entitled for the benefit of time scale pay in the light of the Clarification No.3 of circular dated 13/11/2009. We may not in agreement with the reasoning given by the learned Single Judge but since the relevant Clause-3 of the circular dated 13/11/2009 has already been quashed by this Court and the said order has not been overruled by any Court of law, therefore, we do not find any error in the order of the learned Single Judge quashing the order dated 11/8/2015 denying the time scale pay to the writ petitioner and directing for the payment of the said time scale pay."

6. Relying on the aforesaid judgment, a co-ordinate Bench of this Court at Jabalpur in W.P. No.7091/2020 (Chiran Sumer (supra) )and other connected batch of petitions while allowing the said petitions quashed the impugned order and directed to make fixation of salary of the petitioner w.e.f Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 14-07-2023 18:37:25

1/4/2006 and further directed to refund the amount recovered from the petitioner.

7. Counsel for the State supports the order of recovery and submits that the order relied by the petitioner was only in respect of petitioners and it was not applicable to all the employees.

8. After hearing learned counsel for the parties, I find that the case of the petitioner is squarely covered by the order passed by the co-ordinate Bench of this Court in W.P. No.7091/2020 (Chiran Sumer (supra)) and other connected petitions. The respondents relied on the circular dated 13/11/2009 which has been annexed as Annexure R-1. The said circular has already been quashed by this Court in the case of Pratap Narayan Vishwakarma (supra) which has been affirmed by the Division Bench. The order passed by the Division Bench has been referred by a co-ordinate Bench of this Court in W.P.7091/2020.

9. In view of the aforesaid, the present petition is allowed. The impugned orders of recovery are quashed. The respondents are directed to make fixation of salary of the petitioner as per order dated 5/5/2012 w.e.f 1/4/2006. The aforesaid exercise shall be carried out within period of 3 months from the date of communication of the order and the petitioner shall be granted consequential benefits. The respondents are directed to refund the amount recovered from the petitioner (if any).

(VIJAY KUMAR SHUKLA) JUDGE Pramod

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 14-07-2023 18:37:25