1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE SINGLE BENCH : HON’BLE SHRI JUSTICE S.C. SHARMA W.P. No.6859 of 2006 Rajendra Kumar Agrawal Vs. State of M.P. and others. ********** W.P. No.2618 of 2006 Smt. Kiran Upadhyaya & Ors. Vs. State of M.P. and others. ********** W.P. No.1513 of 2005 Subhash Chandra Vs. State of M.P. and others. ********** W.P. No.1514 of 2005 Rajendra Kumar Vs. State of M.P. and others. ********** W.P. No.1851 of 2005 Balchand Sorada Vs. State of M.P. and others. ********** W.P. No.3788 of 2005 Vijay Mandlik Vs. State of M.P. and others. 2 ********** W.P. No.763 of 2006 Arasad Khan Vs. State of M.P. and others. ********** W.P. No.764 of 2006 Bhanwarilal (Amarlal) Menariya Vs. State of M.P. and others. ********** W.P. No.2447 of 2006 Mohammad Ahmed Khan Vs. State of M.P. and others. ********** W.P. No.2488 of 2006 Yogendra Dev & Ors. Vs. State of M.P. and others. ********** W.P. No.2514 of 2006 Kartik Gade Vs. State of M.P. and others. ********** W.P. No.2519 of 2006 Smt. Premlata Tiwari Vs. State of M.P. and others. ********** W.P. No.2595 of 2006 Babulal Chouhan & Ors. 3 Vs. State of M.P. and others. ********** W.P. No.2619 of 2006 O.P. Lashkari Vs. State of M.P. and others. ********** W.P. No.2620 of 2006 Phoolchand Jain Vs. State of M.P. and others. ********** W.P. No.2621 of 2006 Smt. Shobha Jadhav & Ors. Vs. State of M.P. and others. ********** W.P. No.2643 of 2006 Surendra Singh Vs. State of M.P. and others. ********** W.P. No.2709 of 2006 Rachana Agnihotri Vs. State of M.P. and others. ********** W.P. No.2710 of 2006 Kailash Goyal Vs. State of M.P. and others. ********** W.P. No.2753 of 2006 4 Ashok Kumar Trivedi Vs. State of M.P. and others. ********** W.P. No.2754 of 2006 Shivnarayan Vyas Vs. State of M.P. and others. ********** W.P. No.2764 of 2006 Narayan Kumar Bhagat & Anr. Vs. State of M.P. and others. ********** W.P. No.2765 of 2006 Rajendra Yarde Vs. State of M.P. and others. ********** W.P. No.3091 of 2006 Rajendra Kumar Navin & Ors. Vs. State of M.P. and others. ********** W.P. No.3216 of 2006 Smt. Ambika Shahi & Ors. Vs. State of M.P. and others. ********** W.P. No.3217 of 2006 Neeta Laghate & Ors. Vs. State of M.P. and others. 5 ********** W.P. No.3219 of 2006 Daljeet Kaur Vs. State of M.P. and others. ********** W.P. No.3220 of 2006 Sanjay Kumar Kajre Vs. State of M.P. and others. ********** W.P. No.3231 of 2006 Sudhakar Kakirde Vs. State of M.P. and others. ********** W.P. No.3554 of 2006 Smt. Pushpa Sirsat Vs. State of M.P. and others. ********** W.P. No. 3585 of 2006 Smt. Vimal Kamle Vs. State of M.P. and others. ********** W.P. No.3753 of 2006 Ajay Kumar Singh Vs. State of M.P. and others. ********** W.P. No.3790 of 2006 Kishanlal Mathe 6 Vs. State of M.P. and others. ********** W.P. No.4401 of 2006 Kaushlendra Singh Chohan Vs. State of M.P. and others. ********** W.P. No.5129 of 2006 Amit Chouhan Vs. State of M.P. and others. ********** W.P. No.5130 of 2006 Vikas Jarwal Vs. State of M.P. and others. ********** W.P. No.5384 of 2006 Rameshwar Vijayvargiya Vs. State of M.P. and others. ********** W.P. No.5387 of 2006 Balwant Singh Bais Vs. State of M.P. and others. ********** W.P. No.6498 of 2006 Jaywant Rao Alhate Vs. State of M.P. and others. ********** W.P. No.6499 of 2006 7 Ashok Choudhary Vs. State of M.P. and others. ********** W.P. No.6500 of 2006 Uday Singh Kushwah Vs. State of M.P. and others. ********** W.P. No.6617 of 2006 Badri Prasad Sharma Vs. State of M.P. and others. ********** W.P. No.6854 of 2006 Subhash Singh Chouhan Vs. State of M.P. and others. ********** W.P. No.6855 of 2006 Ku. Rajshri Gurung Vs. State of M.P. and others. ********** W.P. No.6857 of 2006 Subhash Chandra Agrawal Vs. State of M.P. and others. ********** W.P. No.7141 of 2006 Mubarik Seikh Vs. State of M.P. and others. 8 ********** W.P. No.7269 of 2006 Shiv Singh Vs. State of M.P. and others. ********** W.P. No.7347 of 2006 Ashok Kumar Kumawat Vs. State of M.P. and others. ********** W.P. No.7372 of 2006 Jagdish Kumar Tiwari Vs. State of M.P. and others. ********** W.P. No.7526 of 2006 Ku. Kavita Kute Vs. State of M.P. and others. ********** W.P. No.1035 of 2007 Laxmikant Joshi Vs. State of M.P. and others. ********** W.P. No.1036 of 2007 Mr. Santosh Pathrod Vs. State of M.P. and others. ********** W.P. No.3113 of 2007 Smt. Pushpa Panwar 9 Vs. State of M.P. and others. ********** W.P. No.3115 of 2007 Satyaram Pal Vs. State of M.P. and others. ********** W.P. No.6868 of 2007 Dr. Anil Kumar Junwal Vs. State of M.P. and others. ********** W.P. No.12066 of 2010 Pramod Kumar Dubey & Ors. Vs. State of M.P. and others. ********** W.P. No.12449 of 2010 Vishnu G. Verma Vs. State of M.P. and others. ********** Parties through their counsel. O R D E R ( Passed on this 12 th Day of May, 2011 ) Regard being had to the similar controversy involved in these bunch of cases, they have been heard analogously together with the consent of the parties and a common order is being passed in the matter. Facts of writ petition No.6859/06 are narrated as under: 10 2. The petitioner before this Court, who is serving as Sub- Inspector (M) under the Home Department of State of M.P., has filed this present petition being aggrieved by an order order dated 28.10.2006 (P-11) passed by the respondents in the matter of pay-fixation of the petitioner and is also aggrieved by an order dated 07.10.2006 by which a recovery of the arrears consequent to the pay-fixation has been directed by the respondents. The contention of the petitioner is that he was appointed as LDC on 03.09.1982 and has submitted his joining on the post of LDC on 08.09.1982. The petitioner has further stated that he was later on promoted to the post of Sub- Inspector (M) and the State Government took a policy decision on 05.11.1967 for conferral of the Executive (Police) Ranks to all the Ministerial staff of the Police Department. The petitioner has further stated that by virtue of the aforesaid policy decision, the respondents in exercise of the powers conferred under Section 2 of the Police Regulation, 1861 have created new Police ranks (Ministerial) in the State Police Force with retrospective effect. The petitioner has further stated that on the basis of a memorandum dated 05.11.1967, the petitioner was given the benefit of Rs.70/- as an adhoc increase w.e.f. 26/28.06.1979 and the aforesaid adhoc increase of the pay was not taken into account by the respondents while revising the pay of the petitioner w.e.f. 01.04.1981 by virtue of M.P. Revision of Pay Rules, 1983. The petitioner has further stated that one Sharad Belapurkar came up before this Court by filing a writ petition and the same was registered as M.P. No.851/83. This Court vide order dated 06.03.1986 has allowed the writ petition and it was held that A.S.I. (M) shall 11 be entitled for additional salary which they were receiving earlier and any deduction made by the respondents therein was also directed to be refunded. The petitioner has further stated that a S.L.P. was also preferred by the State Government and the same was also dismissed by the Hon'ble Supreme Court on 22.09.1986. The petitioner has further stated that thereafter, one Mr. P.N. Tripathi has preferred an original application and the same was registered as O.A. No.165/94 before the M.P. State Administrative Tribunal, which was also allowed on 15.01.1998. The petitioner has further stated that in the light of the judgments dated 06.03.1986 and dated 15.01.1998, the benefit of additional pay was extended by the respondents to the Constables (M), Head Constables (M), A.S.I. (M), S.I. (M) and the same was also extended to the petitioner. The petitioner has further stated that an order was issued later on on 28.08.2000 and again an order was issued on 12.02.2001 wherein it was mentioned that the earlier order in respect of the pay-fixation dated 28.08.2000 has been stayed. On 22.02.2001, the respondent No.1 has issued a letter stating therein that the order dated 28.08.2000 has been cancelled. The petitioner has further stated that one Mrs. Padma Patankar and 17 others came up before M.P. State Administrative Tribunal by filing an Original Application No.498/01 and the same was transferred to this Court and the same was registered as W.P. No.8108/03. The aforesaid writ petition was allowed and the order dated 22.02.2001 was set aside and the respondents were directed to work out the arrears payable to the petitioners and to make payment to them accordingly. The petitioner has further stated that for grant of same relief 12 he has preferred a W.P. (s) No.1514/05 and the respondents therein have informed this Court that they have already granted the benefit to the petitioner and the writ petition was disposed of keeping in view the fact that the benefit has been granted to the petitioner vide order dated 10.08.2004. The petitioner has further stated that thereafter, an order was issued on 07.06.2005 by granting a benefit of Rs.70/- per month in the pay-scale of Chaudhary Pay Commission and the petitioner was paid accordingly keeping in view the provisions of M.P. Revision of Pay Rules, 1981 and was granted corresponding revised pay-scale by taking into account the additional pay of Rs.70/- per month. The petitioner has further stated that on 28.10.2006, an order was issued cancelling earlier order dated 07.06.2005 meaning thereby the benefit of additional pay of Rs.70/- was withdrawn and a recovery was also ordered by the impugned order. The petitioner has filed this present petition being aggrieved by the order dated 28.10.2006 as well as the order dated 07.10.2006 by the which the benefit of special pay of Rs.70/- has been withdrawn and a recovery has also been ordered. Learned counsel for the petitioner has fairly stated before this Court that in the case of Smt. Sushma Tiwari and in other identical matters, writ petitions were dismissed upholding the withdrawal of special pay and upholding the recovery and a large number of writ appeals were preferred before this Court and finally, the Division Bench of this Court at Principal Seat has decided all such writ appeals involving the same issue. The learned counsel for the petitioner has informed this Court in the case of Smt. Sushma Tiwari and others Vs. State of M.P. 13 and others and in other identical matter vide order dated 21.04.2011, the action of the respondents/State has been upheld. The order passed by the Division Bench of this Court in the aforesaid case from paragraph No.5 onwards read as under;- “5. Learned counsel for the appellants submitted:- (i) that the learned Single Judge erred in not considering the memorandum of the Government of M.P. (Home), Police Department dated 5.11.1967 Annexure A/1 in proper perspective. After coming into force of such an order, all the employees of the ministerial cadre were placed in new police rank in the State Police Force with effect from 1.3.1967 in accordance with appended schedule though with certain condition. That after the ranks assigned to ministerial staff of police department, employees were entitled to get revised their pay-scale after coming into force of rules namely M.P. Revision of Pay Rules, 1983 with effect from 1.4.1981. (ii) He has referred definition clauses 2(5)(d)(g)(h) and rule 3, drawn attention of this Court to Annexure-2 in support of his contention that by order dated 28.8.2000, adequate pay-scale was allowed to the employees of the ministerial cadre and by order dated 25.3.2006, such benefit has been wrongly taken back. (iii) That the controversy in the case was already settled in Sharad Baburao Belapurkar Vs. State of M.P. and others Misc.Petition No.851/1983 decided on 6.3.1986, in which learned single judge of this Court found such entitlement of the appellants but the learned Single Judge erred in not following the law laid down in Sharad Baburao Belapurkar (supra). (iv) That the State Government inspite of getting opportunity to file documents has not filed any document in respect of the pay-scale sanctioned by the State Government of the ministerial employees, in absence of which, all the appellants were entitled to get benefit of the pay-scale as per the Rules of 1983. (v) That Annexure-1 of the said Rule was wrongly applied in respect of the appellants while they were entitled to get the pay- scale as per Annexure 2B of the said Rule. Stating aforesaid, it was submitted by Shri Trivedi that these petitions may be allowed, order passed by the learned single judge may be set aside and orders dated 25.3.2006 and 22.7.2006 may be quashed. 6. Shri R.D.Jain, learned Advocate General supported the order passed by the the learned Single Judge. He has clarified the position by stating the facts thus:- (a) the order dated 28.8.2000 was issued in compliance of the order passed by the M.P. State Administrative Tribunal in Original Application No.45/98 Krishna Gopal Vs. State of M.P & others dated 1.1.2000. Thereafter, various matters were decided in the light of order in Krishna Gopal (supra) while the said order was already reviewed by the M.P. Administrative Tribunal Bhopal Bench in Misc.Application No.218/01 dated 17.11.2001 and the 14 position was made clear. But it appears that the order passed in M.A.No.218/01 was not brought into the notice of the Tribunal and also the High Court so various matters were decided in the light of order dt.1.1.2000 in O.A.No.45/98. Thereafter when the matter came into notice of the State, the order dated 23.5.2006 was passed and the order dated 17.11.2001 was given effect to. The Ministerial Staff of the police department was not entitled for the same pay-scale which was made applicable by order dt. 28.8.2000. (b) He has referred various provisions under the M.P. Revision of Pay Rules, 1983, Schedule-I and II of the said Rules in support of his contention. (c) Shri Jain also submitted that the appellants herein are wrongly interpreting order of the State Government dated 5.11.1967. By the aforesaid order, though a police rank (ministerial) in the State Police Force was created with effect from 1.3.1967, but emolument of the ministerial staff continued the same with certain conditions. As various posts of ministerial staff of the Police Department were changed in police rank (ministerial) but the payscale of the posts remained same and there was no change which is apparent from the perusal of order dt. 5.11.1967. That so far as adhoc increment to the employees of the ministerial cadre is concerned, that was not to be included at the time of revision of pay-scale. However, after revision of pay-scale, the employees were granted with the same adhoc increment. It was also submitted by Shri Jain that the recruitment process for executive cadre is entirely different. Their qualifications, training and the duties are also different, while recruitment of ministerial staff is entirely on different footing. They are not required for training and their duties are also different. (d) So far as the recovery of the excess amount paid to the appellants is concerned, it was submitted that the appellants herein were not entitled for the same so it has been rightly directed to be recovered. (e) That the recruitment of the ministerial staff is still governed by the M.P. Police Regulations and the instructions issued time to time by the State Government, while recruitment of the executive staff is governed by the statutory Rules namely Madhya Pradesh Police Executive (Non-Gazetted) Service Recruitment Rules, 1996. Qualifications, training and duties assigned to both cadres are different and accordingly their pay-scales are also different. It is submitted that the circular which has been relied on by the appellants/petitioners Annexure A/1 dated 5.11.1967 does not support the contention of the appellants/petitioners rather makes the position clear. Thereafter, various Pay Commissions also made the provisions for different pay-scales for the both cadres. (f) So far as the recovery under the order is concerned, it is submitted that wrong payments were made to the petitioners and the petitioners are not entitled to retain the same. He has placed reliance to the Apex Court's judgments in State of Karnataka and another Vs. Mangalore University Non-Teaching Employees Association & others (2002) 3SCC 302 and Syed Abdul Qadir & others Vs. State of Bihar & others (2009) 3 SCC 475. 7. To appreciate the rival contentions of the parties, it would be appropriate if the order passed by the learned Single Judge is referred. The learned Single Judge in para 15 of the order, considering para 8 of the order of the Tribunal in the review application, held thus:- 15 “........that the State Government has specifically directed that all the employees were entitled for the fixation of their basic pay in the corresponding revised pay scale w.e.f. 1.4.1981. Then, the corresponding revised pay scale w.e.f. 1.4.1981 has to be understood. To ascertain the same it has to be seen that before 1.4.1981 the employees i.e. the petitioners were in which pay scale and the corresponding revision of that pay scale would be the revised pay scale in which the basic pay of the petitioners has to be fixed while counting Rs.70/- in terms of Rule 7 of the M.P. Revision of Pay Rules, 1983. What happened in this case is that while counting the adhoc increase in the pay scale existing prior to 1.4.1981 whatever the basic came, on that basic, rather than giving the corresponding revised pay scale, the next higher pay scale was given which was impermissible under the M.P. Revision of Pay Rules, 1990, which was prescribed for Executive cadre. The Tribunal in para-8 of the judgment passed in review and after considering the same in detail the Tribunal clarified its earlier order and came to conclusion that the benefit shall be given under the revised pay scale then the Tribunal while passing the order in O.A. No. 45/98 never meant for grant of higher pay scale but what the Tribunal directed was that only in the corresponding pay scale, Rs. 70/- has to be counted for the purposes of arriving at the basic pay. With reference to a Table appended to the Rules, the Tribunal said that it is only a ready reckoner which does not mean that on that basis a next higher pay scale has to be provided. Thus, the Tribunal in clear words has already explained the judgment passed in O.A. No. 45/1998 and further held that the mistake occurred in the judgment stands rectified by giving the direction to the respondents to fix the basic pay in the corresponding revised pay scale w.e.f. 1.4.1981 but it was never intended to provide a subsequent higher pay scale w.e.f. 1.4.1981.” 8. In paras 17, 18 and 19 of the order, the learned Single Judge held thus:- 17. Learned counsels appearing on behalf of the petitioners during the course of argument have not been able to satisfy this Court as to how all the categories of the petitioners were entitled to be given the benefit of the next higher scale of pay to the corresponding revised pay scale of unrevised pay scale. In the absence of any entitlement to the next higher scale of pay the employees such as the petitioners have to be put in the corresponding revised pay scale of the existing pay scale by counting the adhoc increase to fix the basic pay in the corresponding revised pay scale. The State Government also agreed that the adhoc increase shall be counted while fixing the basic pay of the petitioners in the corresponding revised pay scale. Thus, there is no question that the State Government has not granted Rs.70/- for the fixation of the pay of the petitioners in the corresponding revised scale of pay w.e.f. 1.4.1981 under the M.P. Revision of Pay Rules, 1983 made effective from 1.4.1981. Since all the employees wrongly got the benefit of higher pay scale to which they 16 were not entitled to but they were only entitled to the benefit of the corresponding revised pay scale from 1.4.1981, therefore, as a necessary corollary the recoveries have also been effected. 18. On the basis of the discussion, as aforesaid, the matter with regard to the corresponding revised pay scale has already been dealt with by the Tribunal and ultimately when the final judgment was passed by the Tribunal while deciding the review in operative portion of the judgment passed by the Tribunal i.e. para-10 puts the controversy at rest and para-10 is herein below:- “In view of the aforesaid discussion and looking to the special circumstances of the case the delay in filing the present petition is condoned so that no unintended financial benefit may pass to any person and the cause of substantial justice is advanced and it is further directed that in para 8 of the order sought to be reviewed instead of words and figures “revised pay scale as per Table 31” the words “corresponding revised pay scale as applicable to him under the provisions” shall be deemed to have been substituted with effect from the date of passing of the order. The figure and word “7(b)” shall also be deemed to be substituted by the figures and word “7(1)(b)” from the same date.” 19. It is also to be noted that the grant of any higher pay scale than prescribed in the schedule of Rule 7 with regard to the categories of the persons shall also be contrary to Rule 7 and Schedule II attached to the M.P. Revision of Pay Rules, 1990 wherein the specific corresponding revised pay scale of the existing pay scale has been prescribed in which they were prior to 1.4.1981. The petitioners are not entitled to any other pay scale than prescribed under the M.P. Revision of Pay Rules, 1990. 9. The learned Single Judge thereafter considered the case in para 20 of the order in respect of the recovery initiated by the State Government for the amount which was excessively paid to the petitioners and relying on the judgment of the Apex Court in Mangalore University Non-Teaching Employee's Association (supra) found that no prejudice was caused to the petitioners. The learned Single Judge held that the question with regard to the corresponding pay-scale was already decided by the Tribunal that the corresponding revised pay-scale does not mean any higher pay-scale to the corresponding revised pay-scale and considering the fact that the question was already decided with regard to the corresponding revision of pay-scale, therefore, there was no question of there being any prejudice or reasonable possibility of there being any prejudice and in this regard also, the petition was dismissed. 10. Before appreciating the rival contentions of the parties, it would be appropriate to refer affidavit filed by Shri Rajan Katoch, Secretary, State of M.P., Home Department before this Court, in compliance of the order of this Court, in which he has clarified 17 position and for ready reference his affidavit reads as under:- “2. That, on the date of formation of the state of Madhya Pradesh i.e. on 01.11.1956 the provisions of Police Act were applicable. At that time the recruitment to the posts of Inspector, Sub-Inspectors, Subedars, Asstt. Sub Inspectors were governed by part III of Police Regulation vide paras 46, 47, 48, 49, 50 & 50A. 3. The appointments on the post of Constables was governed by paras 53, 55, 56, 57, 58 and 59 of Police Regulation. 4. The appointment of orderlies was made under the provisions para 61 of the MPPR. 5. The appointment of Head Clerk, Assistant Clerk, Accountant, Asstt. Accountant, Record Keeper, Daftari etc. were governed by paras No.964, 965, 966, 967, 968, 969 of MPPR. M.P. Police Regulations are framed under the Police Act, 1861, and the Act came into force in old Madhya Pradesh by M.P. Act No.12 of 1950 and was enforced in the entire new Madhya Pradesh by M.P. Act No.23 of 1958.