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J.K. Pal Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 27 of 1965
Judge
Reported inAIR1969MP143; (1970)ILLJ136MP; 1968MPLJ833
ActsStates Reorganisation Act, 1956 - Sections 115(7); Constitution of India - Article 309; Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959 - Rules 4 and 6
AppellantJ.K. Pal
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateC.P. Sen, Adv.
Respondent AdvocateK.K. Dubey, Adv.
DispositionPetition allowed
Cases ReferredRaghvendra Rao v. Deputy Commissioner
Excerpt:
- - that being so, the petitioner's contention that the terms of appointment, forming a part of the contract of service, could not be unilaterally revised is well founded. --substantive pay as well as the scale in which the substantive pay is drawn on the 31st october 1956 shall be protected in all cases. .it would thus appear that the central government had not given its approval to the variation of the scale of pay governing permanent government servants to their disadvantage and the state government too had decided to protect the substantive pay as well as the scale applying to such servants in all cases......employed in the offices of the two chief engineers. this included the following changes:existingnewscalescaleupper division clerk (ordinarygrade)125-10-175125-8-165upperdivision clerk (selection grade)150-10-200-120-8-200eb. 15-275it was in pursuance of this decision that the impugned order dated 22nd march 1961 (annexure f) was passed and thereby the petitioner's pay was fixed at rupees 133/- on the new tune scale of pay. it was followed by the second impugned order relating to recovery of over-payments which was, as already indicated, consequential to the first order. it was on the basis of the pay thus fixed that the petitioner's pay was refixed under the unification of pay scales and fixation of pay on absorption rules, 1959. it was again this pay which was taken into account for.....
Judgment:

Pandey, J.

1. This is a petition under Articles 220 and 227 of the Constitution to call up and quash by certiorari-

(i) an order dated 22 March 1961, whereby the petitioner's pay was fixed at Rs. 133/- on a new time scale of payintroduced retrospectively from 17 November 1954;

(ii) another consequential order dated 2 December 1961 by which directions were given for recovery of Rs. 132.15 from the salary of the petitioner on account of over-payments made to him since 6 June 1959; and

(iii) an order dated 1 December 1964 by which the petitioner was given an opportunity for election exercisable under Rules 4 and 6 of the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959. The petitioner further prayed for a writ of mandamus prohibiting the authorities from giving effect to the aforesaid orders.

2. The facts giving rise to this petition, shortly stated, are these. The petitioner was employed as a clerk in the Public Works Department of the old State of Madhya Pradesh, having entered service in the year 1941. By an order dated 14 February 1955, the Government of that State took a decision to divide the Public Works Department into two branches, (i) Buildings and Roads Branch and (ii) Irrigation Branch. In regard to the establishment of the two branches, it was directed inter alia as follows:

'(iv) Subject to the provisions of Clause (iii) above, the existing conditions' of service and procedure in the matter of appointment, promotions, scales of pay etc. shall continue to be in force for the Public Works Secretariat and the combined office of the Chief Engineers but persons recruited after the 17th November 1954 in the combined office of the Chief Engineers will however be entitled to the scales of pay that may be sanctioned hereafter.'

Following this, the petitioner and several other persons were appointed as Upper Division Clerks (Ordinary Grade) by an order dated 31 March 1955, which reads:

'Order No. 59/A Dated Nagpur 31-3-1955.

The following Head Assistants attached to the Circle noted against each are transferred to this office and appointed temporarily until further orders to officiate as Upper Division Ordinary Grade Clerks on the time scale of pay of Rs. 125-10-175 p.m. with effect from the date they join this office:

(9) Shri J.K. Pal.' West Raipur Circle

Sd/-H. R. Gupta

Chief Engineer, P. W. D.

(B&R;) M. P.'

Subsequently, by an order dated 26th October 1956 to be more precise, the petitioner was confirmed on that post (Annexure C). Thereafter, the States were reorganised in pursuance of the provisions of the States Reorganisation Act,1956. Even in the new State of Madhya Pradesh, the petitioner continued to hold that post. Nay, by an order dated 4 March1957, he was promoted to officiate as an Upper Division Clerk in the Selection Grade (Annexure D.). Later on, the Government of the new State of Madhya Pradesh, relying upon the aforesaid order dated 14 February 1955 of the former State, passed an order dated 5 June 1959 whereby it created, with retrospective effect from 17 November 1954, new scales of pay for the clerks employed in the offices of the two Chief Engineers. This included the following changes:

Existing

New

Scale

Scale

Upper Division Clerk

(OrdinaryGrade)

125-10-175

125-8-165

UpperDivision Clerk

(Selection Grade)

150-10-200-

120-8-200

EB. 15-275

It was in pursuance of this decision that the impugned order dated 22nd March 1961 (Annexure F) was passed and thereby the petitioner's pay was fixed at Rupees 133/- on the new tune scale of pay. It was followed by the second impugned order relating to recovery of over-payments which was, as already indicated, consequential to the first order. It was on the basis of the pay thus fixed that the petitioner's pay was refixed under the Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959. It was again this pay which was taken into account for purposes of equation of posts and integration. Being aggrieved, the petitioner made a representation to the State Government, but it went unheeded in spite of several reminders. He has, therefore, moved this Court for relief.

3. The respondents resisted the petition only on the basis of the order dated 14 February 1955 (Annexure R-I) and claimed that it entitled them to revise the scales of pay at a future date.

4. Having heard the counsel, we have formed the opinion that this petition must be allowed. An employee is bound by the terms of employment given to him or by those that he subsequently accepted, either expressly or by necessary implication. He cannot be prejudiced by any reservation not communicated to him, though it might be noted on the office file or recorded elsewhere. The order of appointment of the petitioner (Annexure A) and the order of his confirmation (Annexure C) do not show that the time scale of pay on which he was appointed was liable to be revised. That being so, the petitioner's contention that the terms of appointment, forming a part of the contract of service, could not be unilaterally revised is well founded.

5. Again, the order dated 14 February 1955 (Annexure R-I) on which reliance is placed shows that, on the date on which that order was passed, the State Government had not decided upon the scales of pay of the members of the staff, and therefore, directed that those scales of pay would be sanctioned thereafter. The operative portion of the order reads:

'Subject to the provisions of Clause (iii) above, the existing conditions of service and procedure in the matter of appointment, promotion, scales of pay etc. shall continue to be in force for the Public Works Secretariat and the combined office of the Chief Engineer, but persons recruited after the 17th November 1954 in the combined office of the Chief Engineer will however be entitled to the scales of pay that may be sanctioned hereafter'.

As already indicated, it was after that date that the petitioner was appointed as an Upper Division Ordinary Grade Clerk on the time scale of pay of Rupees 125-10-175. This is not all. He was subsequently confirmed unconditionally on that post on 26 October 1956. In our opinion, the State Government had thus sanctioned, as envisaged by the order dated 14 February 1955, the scale of pay of the petitioner and other employees, who were appointed on 31 March 1955, and the power reserved for that purpose was thus exhausted. There could be thereafter no question of revision of their scale of pay.

6. We are further of opinion that, in any event, the scale of pay made available to the petitioner and others could no longer be revised to their disadvantage in view of the provisions of Section 115(7) of the States Reorganisation Act which reads:

'(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of services of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) or Sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government'.

In regard to this provision, the Supreme Court in Raghvendra Rao v. Deputy Commissioner, AIR 1965 SC 136 observed as follows:

'The effect of this sub-section is, inter alia, to preserve the power of the State to make rules under Article 309 of the Constitution, but the proviso imposes a limitation on the exercise of this power, andthe limitation is that the State cannot vary the conditions of service applicableimmediately before November 1, 1956, to the disadvantage of persons mentioned in Sub-sections (1) and (2) of Section 115.'

It is not disputed that, immediately before 1 November 1956, the petitioner was a permanent Upper Division Clerk and is, therefore, entitled to the protection afforded by the aforesaid Sub-section (7). It is further not disputed that, for reducing the scale of pay applicable to the petitioner from Rs. 125-10-175 to Rupees 125-8-165, the previous approval of the Central Government was not obtained. It is not that the question of extent of protection that should be made available under Sub-section (7) was not referred to the Central Government. The order of the State Government relevant to the matter was issued on 15 August 1958, (Annexure N):

'Attention is invited to Section 115(7) of the States Reorganisation Act, 1956, which lays down that the conditions of service applicable to any person serving in any State affected by the reorganisation of the States immediately before the appointed date shall not be varied to his disadvantage except with the previous approval of the Central Government. With the prior approval of the Central Government, it has been decided to give the following quantum of protection of service conditions to Government servants belonging to the constituent units allotted for service to this State. I-In the matter of Pay-- (A) Permanent Employees. (i) Substantive Pay:-- Substantive pay as well as the scale in which the substantive pay is drawn on the 31st October 1956 shall be protected in all cases. .. . . '

It would thus appear that the Central Government had not given its approval to the variation of the scale of pay governing permanent government servants to their disadvantage and the State Government too had decided to protect the substantive pay as well as the scale applying to such servants in all cases. It is plain enough that the orders challenged before us are directly contrary to this order and contravene the statutory interdiction contained in the proviso to Section 115(7) of the States Reorganisation Act.

7. According to the rule of construction of statutes expressed in the maxim 'Expressio unius est exclusio alterius', an enabling enactment in an Act shuts the door for further implication. Applying this rule to Sub-section (7) of Section 115 of the States Reorganisation Act, it would appear that, after the passing of the Act, the only method that seems to be available for prescribing the conditions of services of the government servants of the former States is by making rules under Article 309 of the Constitution. In this particular case, the order dated 5 June 1959 is not a rule framed under Article 309 of the Constitution and is, therefore, not in conformity with the aforesaid Sub-section (7), but since this point was not argued, we do not rest our decision on this ground. In our opinion, the orders impugned in these proceedings are liable to be struck down because, as we have shown, they constituted an infraction of the statutory provisions contained in Section 115(7) of the Act. Before closing, we may add that, in the view we have taken about the orders challenged in this case, the petitioner will be entitled to have his case in regard to equation of posts and integration reconsidered.

8. The petition succeeds and is allowed. The orders dated 22 March 1961, 2 December 1961 and 1 December 1964 are quashed. The respondents shall bear their own costs and pay those incurred by the petitioner to whom the security amount shall be refunded. Hearing fee Rs. 100/-.


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