S.H.Baig vs The State Of Madhya Pradesh

CIVIL APPEAL NOS.__9888-9899_OF 2018 [Arising out of S.L.P (Civil) Nos. 27288-27299 of 2011]

S.H Baig & Ors. .... Appellants

Versus

The State of Madhya Pradesh & Ors..Respondents

WITH

Civil Appeal Nos._9925-9926 of 2018 (@ Special Leave Petition (Civil) Nos.17498-17499 of 2013)

Civil Appeal No._9929 of 2018 (@ Special Leave Petition (Civil) No.13561 of 2014)

Civil Appeal No._9930 of 2018 (@ Special Leave Petition (Civil) No.25985 of 2014)

Civil Appeal Nos._9900-9905 of 2018 (@ Special Leave Petition (Civil) Nos.27300-27305 of 2011)

Signature Not Verified

Digitally signed by Civil Appeal Nos.9907-9908 of 2018 CHARANJEET KAUR Date: 2018.09.25 17:04:07 IST (@ Special Leave Petition (Civil) Nos.30992-30993 of 2011) Reason:

1 | Page Civil Appeal No._9906 of 2018 (@ Special Leave Petition (Civil) No.29387 of 2011)

Civil Appeal Nos.9915-9924 of 2018 (@ Special Leave Petition (Civil) Nos.26760-26769 of 2012)

Civil Appeal Nos._9912-9914 of 2018 (@ Special Leave Petition (Civil) Nos.15743-15745 of 2012)

Civil Appeal Nos. 9909-9911 of 2018 (@ Special Leave Petition (Civil) Nos.1584-1586 of 2012)

Civil Appeal No._9927 of 2018 (@ Special Leave Petition (Civil) No.4983 of 2014)

Civil Appeal No._9928 of 2018 (@ Special Leave Petition (Civil) No.7915 of 2014)

Civil Appeal Nos._9931 of 2018 (@ Special Leave Petition (Civil) No.35247 of 2017)

JUDGMENT

L. NAGESWARA RAO, J.

I.A. Nos.43-54 of 2015 in SLP (C) Nos.27288-27299 of 2011 (Applications for directions)

I.A.Nos. 6-7 of 2011 in SLP (C) Nos.30992-30993 of 2011 (Applications for impleadment.)

2 | Page I.A. No………… in SLP (C) Nos.15743-15745 of 2012 (Applications for deletion of name of proforma Respondent Nos.6-18)

I.A. No………… in SLP (C) Nos.26760-26769 of 2012 (Application for deletion of name of proforma Respondent)

AND

I.A. No.96266 of 2018 (Application for substitution of deceased Petitioner No.4)

All the above Interlocutory Applications are allowed.

Leave granted.

1. These Appeals have been filed against the judgment

of the High Court of Madhya Pradesh at Jabalpur, by

which the claim of parity of pay-scales made by the

Ministerial employees of the Police Department in the

State of Madhya Pradesh was not accepted.

2. Recruitment to the posts of Ministerial employees

i.e. Head Clerk, Assistant Clerk, Accountant, Assistant

Accountant, Record Keeper, Daftari, etc. was governed

by the M.P. Police Regulations, which were framed under

the Police Act, 1861. Inspectors, Sub-Inspectors,

Subedars, Assistant Sub-Inspectors, etc. were appointed

3 | Page as per the provisions governed by Part III of M.P. Police

Regulations. On 5th November, 1967, the State

Government created new Police Ranks (Ministerial) in the

State Police Force under Section 2 of the Police Act,

1861. The Ministerial employees who opted to be

enrolled under the Police Act, 1861 would continue to

draw emoluments in their existing pay-scales or as

may be revised from time to time. They were given

Uniform Grant and Uniform Maintenance Allowance in

accordance with the scale prescribed for the

corresponding regular posts (Executive). They would,

however, not be entitled to House Rent or Rent Free

Accommodation and Conveyance Allowance admissible

to Officers of corresponding Ranks in the Executive

branch. There was a difference in pay-scales between

the Ministerial and Executive branches of the Police from

the beginning, which can be seen from the M.P. Pay-

Revision Rules, 1961, popularly known as “Tarachand Pay

Scales”. The difference between pay-scales was

continued even as per the “Faquir Chand Pay-Scales” in

1973. On 14th October, 1982, the Chaudhary Pay

4 | Page Commission submitted its Report in which it

recommended as follows :

“We are unable to make recommendation of the pay scales equivalent to Police Executive Force to the ministerial employees of police department. They will have to satisfy with the pay scales received by the colleagues working in other departments.”

3. The M.P. Revision of Pay Rules, 1983 (hereinafter

referred to as “the 1983 Rules) were brought into force

on the basis of the Chaudhary Commission w.e.f. 1st April,

1981. Rule 7 provides for fixation of initial pay of the

Revised Scale which reads as under:

“Rule 7- Fixation of initial pay in the revised scale- (1) .. ..

(b) .. ..

(iv)- Ad hoc increase sanctioned to certain categories of Government servants in Police, Home Guard, Jail and Excise Department, except the ad hoc increase allowed to Ministerial Staff of Police Department.

(2) An amount equal to 20% of the basic pay (inclusive of stagnation allowance, if any) shall first be calculated. In case this amount exceeds Rs.150 it should be reduced to Rs.150.

From such amount of interim relief, or in the case of certain categories of Government servants in the Engineering Department, the amount of the ad hoc increase sanctioned to them, shall be deducted and the balance be added to the emoluments arrived at as in sub-rule (1). If in any case, the balance is less than Rs.10/- then Rs.10/- shall be added to the emoluments. ”

5 | Page

4. Mr. P.N. Tripathi who was initially appointed to

a Ministerial post and was working as a Deputy

Superintendant of Police (DSP) in the office of the

Director General of Police (DGP), Madhya Pradesh filed

O.A. No. 165 of 1994 in the Administrative Tribunal,

Bhopal Bench seeking revised pay-fixation and the

quashing of an order passed for recovery of excess

amounts paid to him. The Tribunal held that P.N. Tripathi

was entitled to get the ad hoc increase of pay of Rs.70/-

for fixation of pay as per Rule 7(1)(b)(iv) of the M.P.

Revision of Pay Rules, 1983. The Tribunal, however,

observed that the special pay was not to be merged in

the revised pay-scales. Mr. Krishna Gopal Duraphe filed

O.A. No.45 of 1998 seeking ad hoc increase of Rs.70/- in

the basic pay as per the M.P. Revised Pay Rules, 1983.

Mr. Duraphe retired as a Deputy Superintendant of Police

(DSP). He was denied the benefit of addition of ad hoc

increase of Rs.70/- to his basic pay. Following the

judgment in Tripathi’s case, the Tribunal allowed O.A.

No.45 of 1998 filed by Mr. Duraphe and directed the

Respondents-therein to re-fix his pay in the revised pay-

6 | Page scale as per Table 31 of the M.P. Revision of Pay-Scales,

1983 by including Rs.70/- for calculation of initial pay as

per Rule 7. After the judgment in Duraphe’s case on 1st

January, 2000, a decision was taken by the

Government of Madhya Pradesh to give the benefit of

Rs.70/- as ad hoc increment in the Chaudhary Pay-Scales

w.e.f. 1st April, 1981 to all the employees working in the

Executive (Ministerial) Force.

5. Miscellaneous Application No.218 of 2001 was filed

by the State of Madhya Pradesh seeking review of the

Order dated 1st April, 2000 passed by the Tribunal in

O.A. No.45 of 1998. The Government of Madhya Pradesh

was aggrieved by the operative portion of the Order

passed on 1 st April, 2000 in O.A. No.45 of 1998

directing Duraphe’s pay to be fixed in revised pay scale

as per Table No.31 of the M.P. Revision of Pay Scales

Rules, 1983. It was contended on behalf of the State

that the Table No.31 is relatable to an Executive Post.

According to the Government, the judgment of the

Tribunal dated 1st January, 2000 needed to be reviewed

because several persons of the Ministerial cadre at the

7 | Page lower levels i.e. Inspector (M)/ Peon, Head Constables

(M), Daftari, ASI (M)/ LDC, Sub-Inspector (M)/ UDC,

Subedar (M)/ Auditor Stenographer were seeking the

same relief. According to the Government, the

Ministerial employees though declared as police officers,

continued to remain in the same cadre performing

ministerial work with separate pay-scales which are

lower than that of the Executive Force. The Government

insisted that there was no intention of granting pay-

scales to Ministerial employees on par with the Executive

Force. The Tribunal held that it never intended or

ordered a higher pay-scale to be given to the Ministerial

employees, that too, from 1st April, 1981. The relief

claimed by Mr. Duraphe was for an ad hoc increase of

Rs.70/- to be added to his basic pay while fixing the pay

in the revised scale of pay w.e.f. 1st April, 1981. The

Tribunal made it clear that the question of grant of a

scale higher than the corresponding revised scale which

was given to the Executive Force was not a subject

matter of the dispute either in Tripathi’s case or the

judgment in O.A. No.45 of 1998 dated 1 st January, 2000.

8 | Page The only point that was adjudicated in both the above

cases was grant of ad hoc increase of Rs.70/- for the

purpose of initial pay-revision. The apparent error

committed by the Tribunal while directing Mr. Duraphe to

be given pay-scale in accordance with Table 31 which

pertains to Inspector of the Executive Force, was

corrected.

6. By a letter dated 22nd February, 2001, the

Government of Madhya Pradesh informed the Director

General of Police that the earlier order by which the

benefit of Rs.50/-, Rs.60/- and Rs.70/- ad hoc increment

in the Chaudhary Pay Scales given to the Executive (M)

employees was deferred till further orders. On 25 th

March, 2006, the Government of Madhya Pradesh

informed the Director General of Police that the

members of the Ministerial employees shall be entitled

for adding the ad hoc increment of Rs.50/-, Rs.60/-

and Rs.70/- for pay-fixation. However, the pay-scale of

such employees shall not be increased. In other words,

they will not be entitled to claim the benefit of being

placed in a higher pay scale which was given only to the

9 | Page Executive Force. Excess payment made due to the

faulty fixation of higher pay-scale in favour of Ministerial

employees was sought to be recovered by a proceeding

dated 22nd July, 2006. The Orders dated 25 th March,

2006 and 22nd July, 2006 were challenged by the

Ministerial employees in the High Court of Madhya

Pradesh.

7. The Writ Petitions were dismissed by the learned

Single Judge of the Madhya Pradesh High Court on 18 th

July, 2007. It was held that the new Police Ranks

(Ministerial) created for the Ministerial staff of the Police

Department by Memorandum dated 5th November, 1967

did not entitle the Ministerial employees to claim parity

of pay with the members of the Executive Force in the

Police Department. The High Court referred to a specific

condition in the said Memorandum that even after

enrolment under the Police Act, 1861, the Ministerial

employees of the Police Department would continue to

draw emoluments in the existing scale in which they

were working prior to 1st April, 1981 or as may be revised

from to time. The High Court observed that the

10 | P a g e ministerial employees were entitled to the payment of

ad hoc increase to be added to the basic pay but they

cannot claim the higher pay-scale which was granted to

the Executive Force. Reliance was placed by the High

Court on the 1983 Rules according to which the claim of

the Appellants for being placed in the next higher pay

scale was not possible. The Order passed by the Tribunal

in the Review Application filed by the State Government

in Gopal Krishna Duraphe’s case was relied upon by the

High Court to reject the relief claimed by the Appellants.

The High Court referred to several cases filed by the

Ministerial employees in the State Administrative

Tribunal seeking relief of parity of pay with the members

of the Executive Force in the Police Department which

were transferred to the High Court on abolition of the

Tribunal. Finally, the High Court held that the Appellants

were entitled for fitment in the corresponding pay-scale

of their existing pay-scale as per Rule 7 of the 1983

Rules. According to the Rules, the members of the

Executive Force in the Police Department were entitled

to the next higher pay-scale of the corresponding revised

11 | P a g e pay-scale. The Ministerial employees were not entitled

to the said benefit, according to the High Court.

Recovery of excess amounts paid due to wrong fixation

on the revision of pay scales was upheld by the High

Court.

8. The Writ Appeals filed by the Appellants were

dismissed. The point pertaining to the parity of pay

scales was answered against the Appellants. However,

recovery of emoluments made between 1 st April, 2000

and 17th November, 2001 was held to be not justified.

The Division Bench of the High Court of Madhya Pradesh

reiterated that the Ministerial staff in the Police

Department were given police ranks by the

Memorandum dated 5th November, 1967. However, their

emoluments continued to be different from that of the

Executive Force in the Police Department. It was held

that the request of the Appellants for equal pay could

not be accepted as the recruitment process for the

employees of the Executive and Ministerial staff is

different, the qualifications for appointment to Executive

and Ministerial posts are not the same, and the duties

12 | P a g e that are discharged by them are also not similar.

The High Court observed that the duties discharged by

the employees in the Executive Force are more rigorous

in comparison to the employees of the Ministerial staff.

On a detailed examination of the Rules, the Division

Bench of the High Court was of the opinion that there is

no doubt that the benefit of the higher pay-scale

to the corresponding pay-scale in the Rules was not

given to the Ministerial (E) employees. After deciding

the point of parity of pay-scales against the Appellants,

the High Court declared the recovery sought to be made

from the Appellants for the period between 1 st January,

2000 and 17th November, 2001 as not justified.

9. The main contention of the Appellants is that they

have become members of the Police Force as per the

Memorandum dated 5th November, 1967. It is contended

that after their enrolment under the Police Act, 1861

they cannot be discriminated against in any manner.

The Appellants urge that there can be no difference

between Ministerial employees and members of the

Executive Force as they were also provided with facilities

13 | P a g e like Uniform Grant and Uniform Maintenance Allowance

by the Memorandum dated 5th November, 1967 and

there was re-designation of their posts. A Peon/ Farash

was given the rank of Constable (M), Daftari/ Jamadar

was given the rank of Head Constable (M). Likewise,

Ministerial employees in the categories of LDC, UDC and

Stenographer were re-designated as Assistant Sub-

Inspector (M), Sub-Inspector (M) and Subedar (M). We

do not agree with the Appellants. It is no doubt true that

police ranks were given to the Ministerial staff in the

departments with certain privileges. However, the

emoluments of the Ministerial staff in the Police

Departments were not revised. It was categorically

mentioned in the Memorandum dated 5th November,

1967 that the Ministerial employees will continue to

draw the same emoluments even after the enrolment

under the Police Act, 1861. Therefore, merely because

police ranks were given to Ministerial employees, they

cannot claim parity of pay.

10. The controversy relating to the entitlement of parity

of pay-scales started with the introduction of the M.P.

14 | P a g e Revision of Pay Rules, 1983 w.e.f. 1st April, 1981. It is

relevant to mention that the State Government by an

Order dated 26th / 28th June, 1979 allowed ad hoc

increment to non-Gazetted employees of the Police Force

w.e.f. 14th June, 1981. A Constable was given Rs.50/- per

month, Head Constable Rs.60/- and the Assistant Sub-

Inspectors, Sub-Inspectors and Inspectors were given

Rs.70/- per month. The Executive as well as Ministerial

employees were entitled for the ad hoc increment.

While submitting its Report, the Chaudhary Pay

Commission expressed its inability to recommend pay-

scales of the Ministerial employees in the Police

Department equivalent to those working in the Executive

posts. It was mentioned in the recommendation of the

Chaudhary Commission that the Ministerial employees in

the Police Department will be entitled to get pay-sales

received by their colleagues working in corresponding

posts in the other departments. The revision of pay-

scales in the State of Madhya Pradesh were made by the

Rules and the revised scales of pay have been specified

in the said Rules. Fixation of initial pay in the revised

15 | P a g e scale is dealt with in Rule 7 which includes the ad hoc

increase sanctioned to certain categories of government

servants in Police, Home Guard, Jail and Excise

Departments excluding the ad hoc increase allowed to

Ministerial staff in Police Department. It is clear that the

ad hoc increase allowed to the Ministerial staff of the

Police Department cannot be taken into account for

the purpose of revision of pay in view of the express

exclusion in Rule 7 (1)(b)(iv). The Executive employees

were given the benefit of the next higher pay-scale to

the corresponding revised pay-scale in the Rules which

benefit was not given to the Ministerial (E) staff. Neither

the Rules nor the pay fixation of the Appellants under

the Rules was challenged. The interpretation of the

Rules of 1983 sought to be placed by the Police does not

appeal to us. The recommendation made by the

Chaudhary Pay Commission which was reflected clearly

in the Rules disentitles the Appellants from claiming the

benefit of being given one scale higher than the

corresponding revised pay-sale.

16 | P a g e

11. The Appellants relied upon the judgments of the

Tribunal in the cases of Tripathi and Duraphe. The Order

dated 17th November, 2001 in the Review Application

filed by the Government in Duraphe’s case makes it

clear that there was no relief claimed by either Mr.

Tripathi or Mr. Duraphe for being placed in the higher

pay-scale. The relief sought by both of them was to

include the ad hoc increment to the basic pay. While

reviewing its Order dated 1 st January, 2000 in O.A. No.45

of 1998, the Tribunal observed that an unintended

benefit flowed from an apparent error committed by the

Tribunal. We are afraid that the Appellants cannot place

any reliance on the judgments of the Tribunal in the

cases of Tripathi and Duraphe.

12. Parity of pay-scales cannot be given to the

Appellants even on the principle of equal pay for equal

work. The Appellants contend that some of the

Ministerial employees were assigned work in the

Executive Police Force. Some persons in the Ministerial

(E) branch have been appointed to the Police Force as

Deputy Superintendent of Police also. The Ministerial (E)

17 | P a g e staff is also assigned duties of Executive Police Force

during elections. The Government maintains that the

members of the Ministerial (E) branch do not discharge

executive functions. It is well settled law that even if

persons are holding same rank/ designation and having

similar powers, duties and responsibilities they can be

placed in different scales of pay and cannot claim the

benefit of the principle of equal pay for equal work.

[See: Randhir Singh v. Union of India1 and State of

Punjab v. Jagjit Singh Ors.2] In this case the

qualifications for appointment, mode of recruitment,

training, the duties and responsibilities not being similar,

the Appellants are not entitled for the relief of equal pay.

13. We are in agreement with the High Court that the

method of recruitment, qualifications for appointment,

duties and responsibilities of the Ministerial and

Executive staff being different, Ministerial employees are

not entitled to claim parity of pay-scales with the

Executive Force. We affirm the judgment of the High

1 (1982) 1 SCC 618 2 (2017) 1 SCC 148

18 | P a g e Court regarding the recoveries sought to be made

between 01.01.2000 to 17.11.2001.

14. For the aforementioned reasons, these Appeals are dismissed.

..............................................J [ S.A. BOBDE ]

...............................................J [ L. NAGESWARA RAO ]

NEW DELHI;

SEPTEMBER 25, 2018.

19 | P a g e