Commercial Tax Department vs Narmada Prasad Upadhaya
2024 Latest Caselaw 14265 MP

Madhya Pradesh High Court

Commercial Tax Department vs Narmada Prasad Upadhaya on 15 May, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                    1
                          IN    THE    HIGH COURT OF MADHYA PRADESH
                                             AT INDORE
                                                 BEFORE
                          HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                    &
                                 HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                            ON THE 15 th OF MAY, 2024
                                           WRIT APPEAL No. 17 of 2024

                         BETWEEN:-
                         1.    STATE OF MADHYA PRADESH, THROUGH
                               PRINCIPAL SECRETARY, DEPARTMENT OF
                               COMMERCIAL TAXES, GOVERNMENT OF MP,
                               VALLABH BHAWAN, MANTRALAYA BHOPAL
                               (MADHYA PRADESH)

                         2.    R EGIS TR AR , MP VANJIYA KAR APPELLATE
                               BOARD, BHOPAL (MADHYA PRADESH)

                         3.    CHAIR M AN , MP VANJIYA KAR APPELLATE
                               BOARD, BHOPAL (MADHYA PRADESH)

                         4.    COMMISSIONER,         COMMERCIAL     TAX
                               D E P A R T M E N T , MOTI      BUNGLOW,
                               COMMISSIONERATE,        INDORE   (MADHYA
                               PRADESH)

                         5.    A C C O U N TA N T GENERAL OF MP, LEKHA
                               BHAWAN, GWALIOR (MADHYA PRADESH)

                                                                          .....APPELLANTS
                         (MS. ARCHANA KHER, ADDL. ADVOCATE GENERAL FOR THE
                         APPELLANTS/STATE).

                         AND
                         NARMADA PRASAD UPADHAYA W/O BRIJMOHAN
                         UPADHAYA, AGED 70 YEARS, OCCUPATION: RETIRED,
                         R/O 85 INDRA GANDHI NAGAR, INDORE (MADHYA
                         PRADESH)

                                                                          .....RESPONDENT
                         (SHRI SUNIL KUMAR JAIN, SENIOR ADVOCATE ASSISTED BY SHRI
                         KARPE PRAKHAR MOHAN, COUNSEL FOR THE RESPONDENT).
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 21-05-
2024 17:17:50
                                                               2
                               This appeal coming on for admission, is heard finally with the consent
                         of parties this day, Justice Sushrut Arvind Dharmadhikari passed the
                         following:
                                                             JUDGMENT

This appeal under Section 2(1) of the M.P.Uchha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed by the appellants assailing the order dated 10.08.2023 passed in Writ Petition No. 253 of 2015 whereby the petition filed by the respondent herein has been allowed and the orders dated 30.12.2014 passed by the State Government, letter dated 30.12.2014 addressed to appellant No.2 as well as the order dated 31.12.2014

and 02.01.2015 passed by appellant No. 2 have been quashed and the appellants have been directed to count the subsequent service of the respondent herein as Member in the MP State Taxation Service for the purpose of pension and retiral benefits under the Rules applicable to the MP State Taxation Service.

2. The petitioner (respondent herein) had filed the writ petition seeking the followings :

''(i) Issue an appropriate writ of mandamus or any other writ direction or order quashing the impugned order dated 30th December, 2014 (Annexure P/1) letter dated 30th December, 2014 (Annexure P/1-A) as well as order dated 31.12.2014 (Annexure P/2) and the order dated 02.01.2015 (Annexure P/3) and order dated 02.01.2015 (Annexure P/3-A).

(ii) Issue an appropriate writ of mandamus or any other writ direction or order directing the respondents to grant salary and pension to the petitioner which is being given to the Secretary of the Government of MP as provided in the Madhya Pradesh VAT Rule, 2006 along with the interest @ 12% on the amount of gratuity, leave-encashment and other retiral benefits.

(iii) Issue an appropriate writ of mandamus or any other writ direction or order directing the respondents to consider the services of the petitioner in continuity after 31.01.2012 and they may kindly be directed to grant the pensionary and retiral benefits to be petitioner treating him as a member of the State Taxation Service.

(iv) Issue an appropriate writ of mandamus or any other writ direction or

order quashing all recovery proceedings against the petitioner in any

manner.

(v) Allow this petition with costs.

(vi) That, any other relief which this Hon'ble Court may deem fit, in the facts and circumstances of the case may kindly be granted in favour of the petitioner.''

3. The brief facts of the case are that the respondent was working as Director, Commercial Tax Department at Indore in 2010. At that time, he was offered the post of Member, Madhya Pradesh Vanijayik Kar Appellate Board (hereinafter referred to as the 'Board') which the respondent accepted when he was 58 years of age. The Madhya Pradesh VAT Act, 2002 (hereinafter referred to as the 'Act, 2002) and the Madhya Pradesh VAT Rules, 2006 (hereinafter referred to as the 'Rules, 2006') provides that a serving member of the MP State Taxation Service, if appointed as a Member of the Board, then his subsequent service as a Member shall be counted as service rendered in the MP Taxation Service for the purpose of pension and retiral benefits. As per Rule 4(8) of the Rules, 2006, the respondent is entitled get the benefit of salary and allowances and pensionary benefits as a member of the MP State Taxation Service. The appellants herein have interpreted the said rules in a different manner and have considered the case of the respondent as retired on attaining the age of 60 years i.e on 31.01.2012 and the difference of excess payment of salary for the period from 01.02.2012 to 31.12.2014 amounting to Rs. 22,92,290/- has been sought to be recovered. The respondent herein had challenged this misinterpretation of

the Rules in the writ petition.

4. Respondent was initially appointed as Sales Tax Officer in September, 1975 and promoted as Regional Assistant Commissioner in the year 1984 and thereafter promoted as Dy. Commissioner, Commercial Tax in the year 1997. He was promoted to the post of Additional Commissioner in 2004

and in the year 2009, the respondent was posted as Director, Commercial Tax. The Director, Commercial Tax is the highest post in the hierarchy of the departmental officers of the Commercial Tax Department. The date of retirement of the respondent was 31.01.2012. However, in 2009 a proposal was initiated for appointing the respondent on the post of Accountant Member in the Board. The respondent made a representation to the Commissioner, Commercial Tax requesting that if there is some hike in the salary which is more than the post of the Director and better service conditions are provided to him, then he would be in a position to consider the proposal. Appellants accepted the offer and selected the respondent for the post of Accountant Member of the Board. The pay scale of the Secretary to the Government of MP was extended to the respondent. Thereafter, the retirement age of the Member was increased to 63 years. On 07.02.2011 an order was issued whereby respondent was made to retire w.e.f. 14.01.2010 when he took over the charge of the Member. The respondent pointed out that his age of superannuation is 31.01.2012 and not 14.01.2010 and thereafter, order dated 24.02.2012 was issued modifying the order dated 07.02.2011 and it was directed that the respondent shall be treated as deemed retired. Meanwhile, the respondent was also granted increments. By the impugned orders Annexure P/1, P/1A, P/2 and P/3A, respondent was treated to be retired from 31.01.2012 and recovery to the tune of Rs. 22,92,290/- was sought for. Since the respondent was a serving member on the date of appointment as Member of the Board, proviso to sub-Section 6 would not be applicable to him as is applicable to those who have retired before appointment.

5. Learned counsel for the appellant contended that the learned Single Judge has wrongly interpreted sub-Rule 6 and 8 of the amended Rule 4 of the

M.P.VAT Rules, 2006. A joint reading of the Rule 4(6) and 4(8) of the Rules, 2006 shows that the respondent is entitled for the full salary and allowances payable to the Secretary till his actual retirement date i.e. 31.01.2012 from the original service in the Taxation Department and thereafter, he shall draw monthly salary allowances payable to the Secretary less monthly pension being paid to him. The subsequent service of the respondent could only be counted from date of joining i.e. 13.01.2010 till his date of retirement i.e. 31.01.2012. Hence, the benefit of sub Rule 8 of Rule 4 ends on the date on which the respondent attained the age of superannuation i.e. on 31.01.2012. Even otherwise, the respondent herein is a Class-I employee and the Apex Court in case of High Court of Punjab & Haryana vs Jagdev Singh, (2016) 14 SCC 267, has observed that in case excess payment is made to an employee, the same is always liable to be recovered. In view of the aforesaid, the learned Single Judge has erred in allowing the writ petition, setting aside the orders. Hence, this appeal.

6. Learned counsel for the respondent has vehemently opposed the prayer and submitted that the learned Single Judge has rightly interpreted the provisions of the Rules. The respondent was made to work up to the age of 63 years. His retirement age was also extended and increments were granted. Learned Single Judge has very exhaustively dealt with the provisions of law before allowing the writ petition. Learned Single Judge has also taken into consideration the fact that no recovery can be made from the retiral dues of the respondent if there is no misrepresentation on the part of the respondent, relying on the various Apex Court judgments which have already been quoted in the impugned order. Hence, the interpretation adopted by the learned Single Judge

cannot be faulted with. Therefore, the impugned order passed by the learned Single Judge needs no interference and the appeal deserves to be dismissed.

7. Heard learned counsel for the parties. Perused the record.

8. Vide letter dated 26.09.2009 (Annexure P/6), the respondent had categorically stated that he would not accept the offer of appointment on the post of Member under the existing service conditions. However, if he is offered better service conditions to that of the Director, he would be in a position to consider the same. The respondent was granted certain assurance and as a result, he was appointed as Member of the Board vide order dated 06.01.2010. As per Rule 8 of the Rules 2006, a serving member of the MP State Taxation Service on being appointed as a Member of the Board shall be deemed to have been retired from the service on the date he assumes the charge of a Member of the Board but his subsequent service as a Member shall be counted as his service in MP State Taxation Service for pension and retiral benefits under the rules applicable to him. Admittedly, the age of retirement

was also increased up to 63 years. Increments have also been granted to the respondent from time to time while he was serving as Member of the Board. The learned Single Judge before coming to the conclusion, has already considered the provisions of law of the Act, 2002 and Rules, 2006 and has held that as per Rule 8 of the VAT Rules, 2006, the respondent shall be entitled to the benefits as Member of the Board. Learned Single Judge has also interpreted the unamended and amended Rule 4 of the Rules, 2006 and has rightly come to the conclusion that the impugned orders are unsustainable and the same have been quashed. The appellants have been directed to count the subsequent service of the respondent in the MP State Taxation Service for the purpose of pension and retiral benefits under the Rules applicable to the MP State Taxation

Service. The learned Single Judge has rightly allowed the writ petition holding that no recovery can be made from the respondent.

9. Accordingly, finding no ground for interference in the order impugned, this writ appeal being bereft of merit and substances is hereby dismissed.

No order as cost.

                            (S. A. DHARMADHIKARI)                                (GAJENDRA SINGH)
                                     JUDGE                                            JUDGE
                         vidya