H.S. Sahu. Vs. the State of Madhya Pradesh, and ors. - Court Judgment

Excerpt:
sub-heading 1904.10 or 2108.00: [s.h.kapadia & aftab alam,jj] cheetos masala balls, cheetos cheese puff and cheetos x & o- classification - held, rule of interpretation is if a specific entry covers a product then one need not go into residuary heading. since subject product made from cereals in grounded form, therefore not falling in sub-heading 19.04. hence, covered by residuary entry sub-heading 2108. 1- challenging the order-dated 1.3.2006 annexure p/6-a, petitioner has filed this writ petition. by the impugned order, an earlier order passed on 3.6.2005, granting pay in the scale rs.4500-7000 has been cancelled and pay of the petitioner is fixed in a lower scale of rs.4000-6000.2- petitioner claims to be a graduate having passed his b.sc examination. thereafter, it is contended that he has passed ma, b.ed and has also obtained a diploma in fine arts from government polytechnic college, jabalpur. on the basis of the aforesaid qualification he was appointed as an artist in agriculture department, on 17.2.1979. he was initially posted at narsinghpur and subsequently he was transferred to jabalpur, where he was working, when this petition was filed. it is the case of the petitioner that.....

Judgment:
1- Challenging the order-dated 1.3.2006 Annexure P/6-A, petitioner has filed this writ petition. By the impugned order, an earlier order passed on 3.6.2005, granting pay in the scale Rs.4500-7000 has been cancelled and pay of the petitioner is fixed in a lower scale of Rs.4000-6000.

2- Petitioner claims to be a Graduate having passed his B.Sc Examination. Thereafter, it is contended that he has passed MA, B.Ed and has also obtained a Diploma in Fine Arts from Government Polytechnic College, Jabalpur. On the basis of the aforesaid qualification he was appointed as an Artist in Agriculture Department, on 17.2.1979. He was initially posted at Narsinghpur and subsequently he was transferred to Jabalpur, where he was working, when this petition was filed. It is the case of the petitioner that on 4.11.2000, respondents had issued various orders in the matter of allocation of employees to the State of Chattisgarh. In the said list particulars of the employees, the post and the pay scales were notified. It is stated that in these documents Annexures P/1, P/2 and P/3, petitioner is shown to be an Artist and his pay scale is shown as Rs.4500-7000. It is stated that pay of the petitioner was fixed in the aforesaid scale and vide Annexures P/4 and P/5, and pay fixation and other benefits were granted to the petitioner in the said pay scale. However, all of a sudden by the impugned order the benefits are withdrawn and by pointing out that it is a mistake committed, petitioner's pay is fixed in the lower scale of Rs.4000-6000. Filing various representations and communications interse between the departments as Annexures P/6 to P/13, and contending that pay of the petitioner was rightly fixed at Rs.4500-7000 and it has been withdrawn in an arbitrary manner, petitioner seeks interference into the matter. By referring to various communications made, available on record, particularly Annexures P/6 and P/6-A, P/7, P/8, P/10 and P/11, letters issued by the competent authority to the Directorate of the Office at Bhopal, and the communications made in these documents, learned counsel argued that pay of the petitioner was rightly fixed and now it is being reduced in an arbitrary manner without just cause or reason. 3- Respondents have filed reply and it is only stated by them that the pay of Artist is in the scale of Rs.4000-100-6000 and as a clerical error was committed in fixing the pay of the petitioner in the higher pay scale Rs.4500-7000, the mistake is being corrected. Respondents admit that the Brahmaswaroop Committee appointed by the State Government had recommended the pay scale to Artists at Rs.4500- 125-7000, but it is stated that this benefit is only extended from 1.4.2006 and not earlier.

4- Petitioner by filing a rejoinder has refuted the aforesaid and points out that the Brahmaswaroop Committee's recommendations were accepted with effect from 1.1.1996 and petitioner's pay was rightly fixed, which is not reduced in an arbitrary manner. 5- Shri D.K. Dixit, learned counsel for the petitioner, taking me through the communications made between the department i.e.. Annexures P/8, P/10, P/11 and P/12, points out that even the office of the Joint Director, Treasury and Accounts at Jabalpur have approved the pay scale of Rs.4500-125-7000 and fixed the pay of the petitioner at Rs.5500/- as on 17.2.1996 in accordance to the recommendations of the Brahmaswaroop Committee and, therefore, the arbitrary action of the respondents is unsustainable. Referring to the communications in this regard made in the intra department communications Annexures P/11 and P/12, Shri Dixit emphasized that except for contending that the pay scale of Artist is Rs.4000-6000 and in fixing the pay of the petitioner in the higher scale Rs.4500-7000, a clerical error is committed by the department, the department is unable to produce any document or evidence to show that the aforesaid contention is correct. 6- While hearing arguments and keeping in view the aforesaid, this Court on 9.2.2010 directed the respondents to bring on record the relevant rules and regulations with regard to the pay prescribed for the post of Artist and the recommendations of the Brahmaswaroop Committee, acceptance of the same by the State Government and the pay of Artist. In pursuance thereof respondents have filed I.A.No.4820/2010 and have brought on record the M.P. Pay Revision Rules, 1998 and a circular dated 17.10.2006 in support of their contention, to contend that the pay scale of Artist is Rs.4000-6000 and not Rs.4500-7000. 7- Having heard learned counsel for the parties and on a perusal of the records, it is clear that in all the documents and the communications made right from Annexures P/2 to P/13, pay of the Artist is shown as Rs.4500-125-7000. In the communication Annexure P/3 issued by the State Government with regard to reduction of 30% posts, the pay scale of Artist is shown as Rs.4500-125-7000. Even in Annexure P/4, the communication made inter-departmentally, it is indicated that the pay of Artist with effect from 1.1.96 is Rs.4500-125- 7000. Accordingly, pay of the petitioner was fixed at Rs.5500/- as on 17.2.1996 vide Annexure P/4. When the impugned action was taken vide Annexure P/6 on 1.2.06 and the pay of the petitioner was sought to be reduced on the ground of typing error, the competent authorities of the Department entered into communication vide Annexures P/10, P/11, P/12 and P/13, and if these communications are meticulously analysed, it would be seen that on the basis of recommendations of the Brahmaswaroop Committee, which is accepted by the State Government and on the basis of report submitted by the Chief Secretary on 5.4.2002, pay of Artist has been fixed at Rs.4500-125-7000 and accordingly action has been taken in the case of the petitioner. In the communication made by the competent authority, in Annexure P/12, it is so indicated by the authority:

"jkT; 'kklu }kjk czEgLo:i lfefr ,oa eq[; lfpo dh v/;{krk esa xfBr lfefr dh vuq'kalk 5.4.02 ds vuqlkj dykdkj dk osrueku 4500&125&7000@& fn;k x;k gS ,oa e-iz- 'kklu, fdlku dY;k.k rFkk d`f"k fodkl foHkkx] ea=ky; Hkksiky ds i= dzekad ,&1&,@19@2007@14&1] Hkksiky] fnukad 30-07-07 ds } kjk Hkh i`"B dzekad 10 lhfj;y 49 vkfVZLV dk osrueku 4500&125&7000@&esa; fnukad 17-2-96 vafdr fd;k x;k gS A vr% fuosnu gS fd Jh lkgw dykdkj dks la;qDr lapkyd dks"k ,oa ys[kk tcyiqj ds }kjk vuqeksfnr osrueku :- 4500&125&7000@& esa fnukad 17-02-96 dks :- 5500@& fn;k tkuk ;ksX; gksxk A Jh lkgw dykdkj }kjk ckj&ckj; dks"kky; ds }kjk vuqeksfnr osrueku fn;s tkus gsrq fuosnu fd;k tk jgk gS A d`i;k bl laca/k esa mfpr funsZ'k @ ekxZn'kZu nsus dk d"V djsaxsa rkfd Jh lkgw dks orsueku :- 4500&125&7000@& fn;s tkus ckcr vko';d dk;Zokgh dh tk lds A"

It is indicated in this order and even the Treasury and Accounts Section has approved the same. Similar indications are made in Annexure P/13 also. That being so, prima facie it seems that the pay of Artist was recommended by the Brahmaswaroop Committee at Rs.4500-7000 and pay of the petitioner was rightly fixed. 8- Respondents only contend that the pay of the Artist is Rs.4000-6000 and when directions were issued by this Court to produce the relevant documents, they have produced two documents. The first is the M.P. Pay Revision Rules, 1998. The Pay Revision Rules 1998 even though published in the gazette on 9.3.1998 has been given retrospective effect from 1.1.1996 and pay scales of various posts have been revised and in Serial No.9 the pay of Rs.4500-125-7000 is indicated. It is, therefore, clear that the Pay and Revision Rules 1998 did recommend a pay scale of Rs.4500-125-7000 for various posts with effect from 1.1.1996. There is nothing in the rules to show as to what was the pay recommended for the post of Artist. However, in the circular dated 17.10.96, in paragraph 5.4.2, it is indicated that the pay of Artist, who is a Degree Holder or a Diploma Holder is increased to Rs.4500-7000. There is nothing in this circular to indicate that this revision is prospective and not retrospective. This Circular is issued on 17.10.2006 and it is clear that the Brahmaswaroop Committee had recommended pay scale of Rs.4500-7000 and this scale was accepted for Artist also. 9- Even though respondents contend that this benefit is available only from 1.1.2006, but no document, rule or regulation is brought to the notice of this Court in support thereof. On the contrary, the communications Annexures P/13 and P/14, indicate that the recommendations of the Brahmaswaroop Committee was accepted with effect from 1.1.96 and the M.P. Pay Revision Rules, 1998 was given retrospective effect and in this also the pay of Rs.4500-7000 has been recommended. The departmental authorities also having so recommended, in the absence of any document to show that the pay of Artist was fixed in the scale Rs.4000-6000, the contention of the respondents cannot be accepted. Petitioner was granted the benefit of the aforesaid pay scale rightly and the same is being reduced arbitrarily by the respondents without any just cause or reason. The only document filed by the respondents alongwith I.A.No.4820/2010 does not establish the fact that petitioner's pay is to be fixed only in the sale scale of Rs.4500-7000 with effect from 1.4.2006. The circular dated 17.10.2006 indicates that the pay of posts shown in paragraph 5.1 is to be fixed from 1.4.2006 and as far as the other pay fixation indicated in paragraph 5.4 are concerned, it only shows that the Brahmaswaroop Committee has recommended the aforesaid pay scale to the employees. When the Brahmaswaroop Committee has recommended the pay scale of Rs.4500- 7000, as is evident from paragraph 5.4 of the circular dated 17.10.2006 and when these recommendations were implemented by the MP Pay Revision Rules, 1998 with effect from 1.1.96, then there is no reason for denying the said benefit to the petitioner, which was initially granted correctly by the departmental authorities. The action of the respondents in granting the benefit only from 1.4.2006 is found to be unsustainable. In the circular dated 17.10.2006, only the pay of the category of posts indicated in paragraph 5.1 i.e.. Schedule I Column 4, are granted with effect from 1.4.2006. As far as the pay scale indicated in paragraph 5.4 is concerned i.e for Artist, there is nothing to indicate that these cannot be granted retrospectively. Even otherwise the MP Pay Revision Rules 1998 having been enforced with effect from 1.1.1996 and the pay scale of Rs.4500-7000, being a prescribed pay scale in the said rules, the petitioner was rightly granted the said benefit and it is not a case where the benefit is granted inadvertently or by mistake. 10- Accordingly, this petition is allowed. Impugned order-dated 1.3.2006 Annexure P/6-A is quashed. Respondents are directed to proceed in the matter to grant the pay of Rs.4500-125-7000 to the petitioner with effect from the date it was initially granted to him vide Annexure P/4 and thereafter proceed to grant him the consequential benefit of Kramonnati accordingly.

11- Petition stands allowed and disposed of with the aforesaid. Necessary action for refixation of pay and grant of arrears be undertaken within three months from the date of receipt of certified copy of this order.

12- Petition is allowed. No order as to costs.