Mahesh Shrivastava vs State Of Madhya Pradesh

The petitioner has filed the present petition challenging the orders dated 03.09.1996, 09.10.1998 and 22.03.1999 passed by the respondents.

Brief facts of the case are that the applicant was initially appointed on the post of Lower Division Clerk on 22. 06.1963 and subsequently as Stenographer on 8. 03.1967. Respondent No. 3 declared the petitioner as substantive Stenographer w.e.f. 01.04.1969. The services of the petitioner are governed by the M.P. Fundamental Rules, M.P. Civil Services (General Conditions of Service) Rules, 1961 and M.P. Subordinate Agricultural (Ministerial) Rules, 1972. As per the Rules of 1972, the post of Stenographer Grade-I is to be filled by 100% promotion from the post of Stenographer Grade-II. Respondent No. 3 has promoted the petitioner from the post of Stenographer Grade-II to Higher Pay Scale of Rs. 900-1450 vide order dated 16.09.1985. The pay scale of the petitioner was revised from time to time on various dates i.e. 01.01.1986, 17.10.1990 and

01.01.1996. The petitioner was also extended the benefit of F.R. 22 (d) as per Fundamental Rules on 16.09.1985. The petitioner retired on 31.07.1996.

After the superannuation of the petitioner, the State Government has enacted new revised scale of pay and was made effective from 01.01.1996.

Accordingly, the pay of the petitioner was fixed as per the provisions of M.P. Revision of Pay Rules, 1998 to Rs.7300/- on 01.01.1996 in the pay scale of Rs.6500-10500 vide order dated 09.07.1998. Thus, the substantive pay of the petitioner was reduced and the same was continued even in subsequent pay fixations in corresponding revised scales of pay made effective from 01.01.1986 to Rs. 1500-2680, Rs. 1640-2900, Rs. 2000-3500 from 1990 and Rs. 6500-10500 from 01.01.1996 till his superannuation. Thus, the substantive pay of the petitioner was reduced from Rs.1620 to Rs.1580 retrospectively w.e.f. 01.01.1986 vide order dated 03.09.1996. Being aggrieved by this action of the respondents in reducing his pay, the petitioner has filed the present petition.

Learned counsel for the petitioner argues that the impugned order is illegal, arbitrary and violative of principles of natural justice. He submits that before passing the impugned order, no notice or any opportunity of hearing was given to the petitioner. He further relied on the judgement passed by the Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334 has held that recovery from retired employee is impermissible in law.

He further submits that there is no mistake or misrepresentation on the part of the petitioner, therefore, the order of recovery may be set aside and the respondents may be directed to revised his pension on the basis of last pay drawn.

Learned counsel for the respondents have filed their reply and in the said reply, the respondents have stated that when the petitioner was retired from Government service on 31.07.1996 his case was sent to the Joint Director Treasury and Accounts, Bhopal for approval of pay fixation, however, the Joint Director Treasury and Accounts has refused to give approval for pay fixation of the petitioner. The respondents have further stated that the Government of M.P. General Administration Department, Karmik Prashanik Sudhar Evam Prashikshan Vibhag (Vetan Ayog Prakost) has implemented a new scheme for the Stenographers vide circular dated 15.03.1988. In this scheme, there is a provision for pay fixation under Rule FR- 22(d) in case of Stenographer's promoted after 15. 03.1988. It has further been mentioned that in case of Stenographers promoted previously it be treated as 'Kramonnati' in 3 tired pay scales even if, word promotion was used and in such cases pay fixation was to be made according to the provisions of FR-22(A)(II) as per circular dated 04.02.1985. In light of the aforesaid circular, the pay fixation of Shri Shrivastava was made under Rule 22(f) and this error was rectified by the Joint Director Treasury and Accounts and accordingly, pay fixation was regularised vide order dated

03.09.1996. As regards recovery from the gratuity is concerned, the respondents have stated that as a result of wrong pay fixation, the petitioner was paid the excess amount and there was no other remedy except to recover the excessive amount paid to the petitioner from his gratuity. In light of the aforesaid, learned counsel for the respondents submits that the order of recovery passed by the respondents is just and proper.

The petitioner has filed the rejoinder and explaining the legal position by controverting the stand taken by the respondents in their return. The petitioner has stated that it is clear from the contents of impugned order dated 07.11.1986 he was sue motto give the benefit of FR-22(d) by the department in pay fixation in Senior Stenographer Grade there is no misrepresentation on the part of the petitioner.

Heard learned counsel for the parties and perused the record.

From perusal of the record, it reveals that in the present case, the petitioner was retired from the post of Senior Grade Stenographer on 31.07.1996.

At the time of his retirement the Pay Fixation Rules of 1998 were made effective w.e.f. 01.01.1996. In the pay was fixed in the grade of Rs.2000- 3500 and the same was approved by the Joint Director Treasuries and Accounts. By this order, the substantive pay of the petitioner was reduced by two stages below i.e. from 1620 to 1580 in the time scale of Rs.1500-2680 retrospectively w.e.f. 01.04.1986. Thus, as per the petitioner the pay of the petitioner was substantively reduced after his retirement. He, therefore, filed this present petition. The petitioner has further submitted that due to the wrong fixation of pay recovery of an amount of Rs. 22,218/- was made by the petitioner from his pay fixations.

In the present case, the petitioner was appointed on the post of Stenographer vide order dated 8. 03.1967 in the pay scale of Rs. 140-240.

Thereafter, respondent No. 3 has promoted the petitioner from the post of Stenographer Grade-II to the higher pay scale of Rs.900-1450 as Senior Stenographer Grade-I and he was also granted the benefit of corresponding revised scales of pay from various dated i.e. 01.01.1986, 17.10.1990 and

01.1996. Respondent No. 3 by giving the benefit of FR-22(d) to the petitioner fixed the pay of the petitioner at Rs.900-1600 as on 16.09.1985. This is the substantive pay of the petitioner. The State Government has enforced the new revised pay scale of pay and it was made effective from

01.01.1996. Under this Rules, pay scale of the petitioner was fixed at Rs. 7300/- in the pay scale of Rs.6500-10500. Thus, the substantive pay of the petitioner has been reduced by respondent No. 3 vide order dated 03.09.1996. Thus, the impugned order has been passed after retirement of the petitioner that to without giving any opportunity of hearing to the petitioner. Due to deduction in the substantive pay of the petitioner, the pension of the petitioner has also been fixed at reduced pay scale.

So far as, recovery from the amount of gratuity is concerned, the Apex Court in the case of Rafiq Masih (White Washer) (supra) has held that recovery from retired employee is impermissible in law.

In the present case from perusal of the record, it reveals that there is no misrepresentation or any fault on the part of the petitioner. So far as, fixation is concerned, this Court in the case of Deshraj Singh Vs. State of M.P. and others, passed in W.P. No. 16553/2012 decided on 24. 07.2018 has held that the benefit of higher pay scale is available till an employee continues on the higher post, then his is entitled to get the pension on the basis of last pay drawn.

In view of the aforesaid, this petition deserves to be allowed. The order of recovery dated 03.09.1996 is hereby set aside and the respondents are directed to revise the pension, gratuity, commutation of pension and surrender leave amount etc. on the basis of substantive revised pay of Rs. 7700 in the pay scale of Rs.6500-10500 w.e.f. 01.01.1996. The said amount be paid to the petitioner within a period of three months from the date of receipt of certified coy of the order passed today.