STATE OF MADHYA PRADESH versus R.D. SHARMA AND ANR. on 27 January 2022

STATE OF MADHYA PRADESH

v.

R.D. SHARMA AND ANR.

(Civil Appeal Nos. 474-475 of 2022)

JANUARY 27, 2022

[DR. DHANANJAYA Y. CHANDRACHUD ANDBELA M. TRIVEDI, JJ.]

Service Law – Constitution of India – Article 227 – IndianForests Service (Pay) Second Amendment Rules, 2008 –AmendedRules provided for upgradation of one existing post of PrincipalChief Conservator of Forest (PCCF) as the Head of Forest Force inthe apex scale – Respondent no.1 who retired as PCCF soughtrevision of his pension as per said Rules – Rejected – Filedapplication before Tribunal, dismissed – Writ petition allowed byHigh Court – Said order was challenged by appellant beforeSupreme Court, SLP was disposed of granting liberty to approachthe High Court – Accordingly, appellant filed review petition,dismissed – Present appeals challenge the said order and the orderpassed by High Court allowing the writ petition, held: Whiledisposing of the SLP, the appellant was granted liberty to approachthe High Court, also the SLP was disposed of without expressingany opinion on merits – All the issues were kept open for beingconsidered by High Court in the Review Petition, and the appellantwas permitted to approach this court, if aggrieved by the orderpassed therein as well as in the Writ Petition – Present appealsmaintainable – On merits, since the respondent no.1 had retired asthe PCCF in the year 2001, much prior to the coming into force ofthe Amended Rules of 2008, his claim to get the benefit of the apexscale as per the said rules was misconceived – Apex scale was fixedfor the upgraded post w.e.f. 27.09.08 and was to be filled up byway of selection and not as a matter of course – Further, power u/Article 227 is to be used sparingly and only in appropriate cases –High Court wrongly set aside the well considered order of Tribunalby applying the principle of “equal pay for equal work” –Interference was unwarranted – Orders passed by High Court setaside.

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Service Law – Selection – Held: Filling up a post by selectionwould always require a process of screening the eligible employees,and cannot be automatic on the basis of seniority.

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Service Law – Equation of post, determination of pay scales– Held: Equation of post and determination of pay scales is theBprimary function of the executive and not the judiciary – Ordinarilycourts will not enter upon the task of job evaluation which isgenerally left to the expert bodies like the Pay Commissions –Constitution of India – Article 227.

Constitution of India – Article 227 – Power under – Held:CPower u/Article 227 is intended to be used sparingly and only inappropriate cases for the purpose of keeping the subordinate courtsand tribunals within the bounds of their authority and not forcorrecting mere errors.

Allowing the appeals, the CourtD

HELD: 1. As discernible from the earlier order dated 1stDecember, 2017, this court while disposing of the SLP had granteda liberty to the appellant to go back to the High Court and getthe records corrected, as according to the Ld. Counsel appearingfor the appellant-State, certain facts were not correctly recordedEby the High Court in the impugned order. This court also clarifiedthat it had otherwise not considered the matter on merits. Asrightly submitted by the appellant-State, since this court hadgranted a liberty to the appellant to approach the High Court andhad disposed of the SLP without expressing any opinion on merits,it was intended to keep all the issues open for being consideredFby the High Court in the Review Petition, and to permit theappellant to approach this court, in case the appellant wasaggrieved by the order passed by the High Court in the ReviewPetition as well as in the Writ Petition.The present appeals arelegally maintainable. [Para 8][714-D-F; 715-F]

GSudhakar Baburao Nangnure vs. NoreshwarRaghunathrao Shende 2020 (11) SCC 399 : [2019] 4SCR 945 – relied on.

2.1 The relevant Amended Rules of 2008 came into effectfrom 27th September, 2008. From the relevant sub-rule (1) ofRule 3 of the said Amended Rules, 2008 , it is abundantly clearthat one existing post of PCCF was to be upgraded as the Headof Forest Force in each State cadre, fixing the apex scale at Rs.80,000/- w.e.f. the date of the issue of Notification of the saidAmended Rules i.e. 27th September, 2008, and that the said postof PCCF in the apex scale was to be filled up by selection fromamongst the officers holding the post of PCCF in the State cadrein the HAG + scale of Rs.75,500/- (annual increment @ 3%) –80,000/-. Since the respondent no. 1 had retired as the PCCF inthe year 2001 that is much prior to the coming into force of theAmended Rules, 2008, his claim to get the benefit of the apexscale as per the said rules was thoroughly misconceived. Theapex scale of Rs. 80,000/- was fixed for the upgraded postdesignated as the Head of Forest Force w.e.f. 27th September,2008 and was to be filled up by way of selection and not as amatter of course. Filling up a post by selection would alwaysrequire a process of screening the eligible employees, and cannotbe automatic on the basis of seniority. The contention raised bythe respondent no. 1 that even prior to the amendment in therules in the year 2008, the officers working on the post of PCCFwere the Head of the Forest Force and the respondent no. 1 wasalso working as such, cannot be accepted, for the simple reasonthat if all the officers working on the post of PCCF were alsoworking as the Head of the Forest Force, there was no need toupgrade one existing post of PCCF in the apex scale of Rs. 80,000/- and designate it as the Head of the Forest Force, w.e.f. 27thSeptember, 2008, as specifically provided in Sub-Rule 1 of Rule3 of the Amended Rules of 2008. Rule 11 of the said AmendedRules of 2008 also specifically reiterates the said position aboutupgradation and designation of the post of PCCF as the Head ofForest Force in the State of Madhya Pradesh, as in other Statesand Union Territories. The High Court in the impugned orderspassed in Writ Petition as well as in the Review Petition hadthoroughly misdirected itself by applying the principle of “equalpay for equal work”. The equation of post and determination of AB

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Apay scales is the primary function of the executive and not thejudiciary and therefore ordinarily courts will not enter upon thetask of job evaluation which is generally left to the expert bodieslike the Pay Commissions. This is because such job evaluationexercise may include various factors including the relevant dataand scales for evaluating performances of different groups ofBemployees, and such evaluation would be both difficult and timeconsuming, apart from carrying financial implications. Therefore,it has always been held to be more prudent to leave such task ofequation of post and determination of pay scales to be best left toan expert body. Unless there is cogent material on record to comeCto a firm conclusion that a grave error had crept in while fixingthe pay scale for a given post, and that the court’s interferencewas absolutely necessary to undo the injustice, the courts wouldnot interfere with such complex issues. “Equal pay for equal work”is not a fundamental right vested in any employee, though it is aconstitutional goal to be achieved by the Government. [ParasD12-14][716-G; 717-E-H; 718-A-H; 719-A]

State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017SCC 148; Secretary, Finance Department Vs. WestBengal Registration Service Associations and Ors. 1993Suppl. 1 SCC 153 : [1992] 1 SCR 897; State of HaryanaEand Anr. Vs. Haryana Civil Secretariat Personal StaffAssociation 2002 (06) SCC 72 : [2002] 1 Suppl. SCR118 – referred to.

2.2. Pertinently the Administrative Tribunal afterconsidering the relevant factual and legal aspects had rightlyFrejected the claim of the respondent no. 1 for granting the apexscale on the basis of “equal pay for equal work” in the O.A. filedby him. The said well- considered, just and proper order of theTribunal was wrongly set aside by the High Court on extraneousgrounds applying the principle of “equal pay for equal work”,Gwhile exercising the power of superintendence under Article 227of the Constitution of India. The power under Article 227 isintended to be used sparingly and only in appropriate cases forthe purpose of keeping the subordinate courts and tribunals within H

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the bounds of their authority and not for correcting mere errors.In the instant case, the Tribunal had not committed anyjurisdictional error, nor any failure of justice had occasioned, andhence the interference of the High Court in order passed by theTribunal was absolutely unwarranted. The impugned orderspassed by the High Court being thoroughly misconceived in lawand in facts, are set aside. [Paras 15, 16][719-B-E]

B

K.S. Krishnaswamy & Ors. Vs. Union of India & Anr.2006 (13) SCC 215 : [2006] 9 Suppl. SCR 330–referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 474-475 of 2022.

From the Judgment and Order dated 28.04.2017 of the High Courtof Madhya Pradesh, Principal Seat at Jabalpur in W.P. No.14940 of2013 and Order dated 17.09.2019 in R. P. No.1386 of 2018.

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Saurabh Mishra, AAG, Ms. Mrinal Gopal Elker, Manish Yadav,Advs. for the Appellant.

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Vikramjit Banerjee, ASG, Nachiketa Joshi, B. K. Satija, Ms. IndiraBhakar, Udai Khanna, Arvind Kumar Sharma, Anish Kumar Gupta,Venugopal Abhay, Vaibhav Verma, Advs. for the Respondents.

The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

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1. Leave granted.

2. The appellant-State of Madhya Pradesh by way of presentappeals filed under Article 136 of the Constitution of India has assailed H

Athe Judgments and Orders dated 28.04.2017 and 17.09.2019 passed bythe High Court of Madhya Pradesh, Principal Seat at Jabalpur in W.P.No. 14940 of 2013 and R.P. No. 1386 of 2018 respectively.

3. The respondent no. 2 herein i.e. Government of India, Ministryof Personnel, Public Grievances and Pensions (Department of PersonnelBand Training), in exercise of the powers conferred by sub-section 1 ofsection 3 of All India Services Act, 1951 and in supersession of theIndian Forests Service (Pay Rules 1968) had made the Rules namelythe Indian Forests Service (Pay) Rules 2007). The said Rules of 2007came to be amended by the respondent no. 2 vide the notification dated27the September 2008. The said Amended Rules were called the IndianCForests Service (Pay) Second Amendment Rules, 2008 (hereinafterreferred to as the Amended Rules of 2008). Sub-Rule 1 of the Rule 3 ofthe said Amended Rules of 2008 provided for the upgradation of oneexisting post of Principal Chief Conservator of Forest (PCCF), to bedesignated as the Head of Forest Force in the each State cadre. TheDsaid rule further provided for the apex scale at Rs. 80,000/- (fixed) forthe said upgraded post designated as the Head of Forest Force. It alsoprovided that the said upgradation was to be made w.e.f. the date ofissue of the notification of the Amended Rules, 2008 i.e. 27[th] September,2008, and that the said upgraded post was to be filled by “selection”from amongst the officers holding the post of PCCF in the State cadre inEthe HAG+ scale of Rs. 75,500 - Rs. 80,000.

4. The respondent no. 1 (the petitioner before the High Court)retired from the post of PCCF on 31[st] December, 2001. On 2[nd] April,2011, the respondent no. 1 made a representation to the Government ofIndia requesting it to revise his pension from Rs.37,750/- (50% of HAGFScale 75000-80000) to Rs. 40,000/- (50% of apex scale 80000) as perthe Indian Forests Service (Pay) Second Amendment Rules, 2008. Thesaid representation came to be rejected by the Government of India,Ministry of Personnel, Public Grievances and Pensions, Department ofPension and Pensioners Welfare vide the order dated 24[th] June, 2011.GThe aggrieved respondent filed an O.A. being No. 1142/2011 before theCentral Administrative Tribunal (hereinafter referred to as the ‘Tribunal’),Jabalpur, Madhya Pradesh on 27[th] November, 2011. The said O.A. cameto be dismissed by the Tribunal vide the order dated 17[th] May, 2013.However, the Writ Petition being No.14940 of 2013 filed by therespondent challenging the said order passed by the Tribunal, came toH

be allowed by the High Court of Madhya Pradesh, Jabalpur vide theorder dated 24[th] August, 2013. The High Court by the said order heldthat the respondent no. 1 was eligible to get the benefit of Rs. 40,000/-as pension at par with the other officers, as per the Rules of 2008.

5. The aggrieved appellant-State of MP challenged the said orderpassed by the High Court before this Court by filing the special leavepetition (Diary) No. 36531 of 2017. The said SLP came to be disposedof by this Court vide order dated 1[st] December, 2017, which reads asunder:

“Delay condoned.

In the judgment it is observed as follows:- “It is an admitted fact that the petitioner retired from the post ofPrincipal Chief Conservator of Forests, Head of the ForestDepartment…..”.

According to the learned counsel appearing for the State this isnot true to facts.

If that be so, it is for the petitioner to go back to the High Courtand get the records corrected.

With the liberty, as above, the special leave petition is disposed of.

We make it clear that we have not otherwise considered the matteron merits.

Pending application(s), if any, shall stand disposed of.”

6. The appellant availed the liberty granted by this Court andapproached the High Court by filing a review petition being R.P. No.1386 of 2018. The said review petition however came to be dismissedby the High Court vide impugned order dated 17[th] September, 2019. Theaggrieved appellant, therefore, has challenged both the orders dated28.04.202017 and 17.09.2019 passed by the High Court, by way of theseappeals.

7. In the instant appeals, the question that falls for considerationbefore this court is, whether the High Court while exercising its powersof superintendence under Article 227 of Constitution of India, hadmisdirected itself by applying the principle of “equal pay for equal work”to the case of respondent no. 1 who had already retired as the PCCF on31.12.2001, for the purpose of granting him the benefit of the apex scale A

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Afixed for the upgraded post of Head of the Forest Force, MP Cadre, asper the Amended Rules of 2008 which came into effect from 27theSeptember 2008 and fixing his pension accordingly?

8. However, before adverting to the rival contentions raised bythe Ld. Advocates for the parties, let us first deal with the preliminaryBobjection raised by the Ld. Advocate Mr. Anish Kumar Gupta appearingfor the respondent no. 1 as regards the maintainability of the appeals.According to Mr. Gupta, the appellant having earlier challenged the orderdated 28[th] April, 2017 passed by the High Court by filing the SLP beforethis court and this court while disposing of the said SLP vide the orderdated 1[st] December, 2017 having not granted any liberty to approachCthis court again after the disposal of Review Petition by the High Court,the present appeals are not maintainable. The court does not find anysubstance in the said preliminary objection raised by Mr. Gupta. Asdiscernible from the earlier order dated 1[st] December, 2017 reproducedhereinbefore, this court while disposing of the SLP had granted a libertyDto the appellant to go back to the High Court and get the recordscorrected, as according to the Ld. Counsel appearing for the appellant-State, certain facts were not correctly recorded by the High Court in theimpugned order. This court also clarified that it had otherwise notconsidered the matter on merits. As rightly submitted by Ld. AAG Mr.Saurabh Mishra for the appellant-State, since this court had granted aEliberty to the appellant to approach the High Court and had disposed ofthe SLP without expressing any opinion on merits, it was intended tokeep all the issues open for being considered by the High Court in theReview Petition, and to permit the appellant to approach this court, incase the appellant was aggrieved by the order passed by the High CourtFin the Review Petition as well as in the Writ Petition. In the opinion ofthe court, the observations made by this court in the latest decision incase of Sudhakar Baburao Nangnure Vs. Noreshwar RaghunathraoShende 2020 (11) SCC 399 clinch the issue, in which the SupremeCourt in almost similar issue as raised in the present appeals, has observed as under:G

“It is well settled that if a submission which has been urgedbefore the High Court has not been noticed or considered, itis to the High Court that the aggrieved litigant must turn forthe rectification of the record. But, apart from this, theobservation in the order dated 12 December 2017 that thisH

Court had not considered the matter on merits is of crucialsignificance. The purpose of that clarification was to ensurethat the issues which were raised (in any event with regard tothe catch-up rule) were entirely open, to be urged before theHigh Court in the first instance and thereafter, if the appellantwere to be aggrieved, in further proceedings before this Court.The above observation of this Court was not merely intendedto keep the issue of the non-consideration of the catch-uprule open to be urged before the High Court. That this issuewas kept open, is evident from the last part of the order dated12 December 2017 which specifically keeps open thecontentions of the parties to be urged before the High Court.In addition, the order of this Court carefully enunciates thatwe have not considered the matter on merit.

In view of this clear clarification, it is impossible to acceptthe preliminary objection that a recourse to this Court is barredafter the High Court decided the review petitions. To takeany other view would effectively deny access to justice to theappellant. Evidently, the grievance of the appellant was notconsidered by this Court on merits on 12 December 2017. Toadopt a construction which would deprive the appellant ofthe remedy of moving this Court after the decision of the HighCourt in review would lead to an egregious failure of justice.Such a construction must be eschewed.”

In view of the clinching observations made by this court in theafore-stated decision, no further elaboration is required for holding thatthe present appeals are legally maintainable.

9. So far as the merits of the appeals are concerned, Ld. AAGMr. Mishra for the appellant strenuously urged placing reliance upon theRules of 2008 that the said rules having come into force w.e.f. 27[th]August, 2008, and the respondent no. 1 having already retired as PCCFin 2001, the respondent no. 1 could not have been granted the benefit ofthe apex scale as erroneously granted by the High Court, applying theprinciple of “equal pay for equal work”. According to him, the saidprinciple had no application to the upgradation of post of PCCF as theHead of Forest force in the apex scale which had to be filled up by“selection” and that too with effect from 27[th] August, 2008. He alsodrew the attention of the court to the Rules of 2007 and of 2008 to AB

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Asubmit that the respondent no. 1 was working as PCCF and was notworking on the upgraded post of Head of the Forest Force which wasdesignated for the first time in the year 2008, and that the High Courthad erroneously observed in the impugned orders that the respondentno. 1 was working as the PCCF, Head of the Forest Force.

B10. The Ld. ASG Mr. Vikramjit Banerjee for the respondent no. 2Union of India, supplementing the submissions made by the Ld. AAGMr. Mishra for the appellant State, submitted that the benefit ofupgradation of one existing post cannot be given to the pensioner whohad already retired before such upgradation. In this regard, he had reliedupon K.S. Krishnaswamy & Ors. Vs. Union of India & Anr. ReportedCin 2006 (13) SCC 215.

11. Per contra, the Ld. Advocate Mr. Anish Kumar Guptaappearing for the respondent no. 1, taking the court to the variousappointment orders issued by the appellant in case of other officerssubmitted that the officers appointed as PCCF, MP were also appointedDas the Head of the Forest Department, M.P. before the Amended Rulescame into force and that the respondent was also shown as the PCCF,M.P., in the list of members of IFS, which meant that the respondentwas also the PCCF, Head of the Forest Department in the State ofMadhya Pradesh. Invoking the principle of “equal pay for equal work”,Ehe submitted that the work and responsibility of a PCCF, M.P. and the upgraded post of PCCF, Head of Forest Force were the same andtherefore the High Court had rightly granted the benefit of the apexscale as per the Amended Rules of 2008. He further submitted that thepost of PCCF, Head of Forest Force in IFS was not a newly createdpost but was upgraded from the existing post of PCCF in the department,Fby virtue of the Amended Rules, and therefore also though the respondenthad retired in 2001, he was required to be treated as eligible for thepension as per the apex scale of Rs. 80,000/-.

12. In order to appreciate the rival contentions raised by the learnedcounsel appearing for the parties, it would be beneficial to reproduce theGrelevant Amended Rules of 2008 which came into effect from 27[th]September, 2008. The relevant sub-rule (1) of Rule 3 of the said AmendedRules, 2008 reads as under:

(1) Pay-Bands and Grade Pays: - The pay bands and gradepays admissible to a member of the Service and the dates with H

effect from which the said pay bands and grade pays shall bedeemed to have come into force, shall be as follows:

A to C ……………………….

D Above Super Time Scale: -

(i) Additional Principal Chief Conservator of Forest –

Pay-Band – 4: Rs.37400-67000; plus Grade Pay Rs.12000;

(ii) HAG +: Rs.75500- (annual increment @ 3%)- 80000;Grade Pay: Nil;

(iii) Apex Scale: Rs.80000 (fixed), Grade Pay: nil (byupgradation of one existing post of Principal ChiefConservator of Forest as head of Forest Force in the eachState Cadre);(With effect from the date of issue ofnotification of the Indian Forests Service (Pay) AmendmentRules, 2008); Note 1: ………………….

Note 2: The post of Principal Chief Conservator of Forest inthe apex scale shall be filled by selection form amongst the officersholding the post of Principal Chief Conservator of Forest in theState cadre in the HAG + Scale of Rs. 75500-(annual increment@ 3%)-80000.

From the above quoted rules, it is abundantly clear that one existingpost of PCCF was to be upgraded as the Head of Forest Force in eachState cadre, fixing the apex scale at Rs. 80,000/- w.e.f. the date of theissue of Notification of the said Amended Rules i.e. 27[th] September,2008, and that the said post of PCCF in the apex scale was to be filledup by selection from amongst the officers holding the post of PCCF inthe State cadre in the HAG + scale of Rs.75,500/- (annual increment @3%) – 80,000/-.

13. Since the respondent no. 1 had retired as the PCCF in theyear 2001 that is much prior to the coming into force of the AmendedRules, 2008, his claim to get the benefit of the apex scale as per the saidrules was thoroughly misconceived. The apex scale of Rs. 80,000/- wasfixed for the upgraded post designated as the Head of Forest Forcew.e.f. 27[th] September, 2008 and was to be filled up by way of selection A

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Aand not as a matter of course. It is needless to say that filling up a postby selection would always require a process of screening the eligibleemployees, and cannot be automatic on the basis of seniority. Thecontention raised by Mr. Gupta for the respondent no. 1 that even priorto the amendment in the rules in the year 2008, the officers working onthe post of PCCF were the Head of the Forest Force and the respondentBno. 1 was also working as such, cannot be accepted, for the simplereason that if all the officers working on the post of PCCF were alsoworking as the Head of the Forest Force, there was no need to upgradeone existing post of PCCF in the apex scale of Rs. 80,000/- and designateit as the Head of the Forest Force, w.e.f. 27[th] September, 2008, asCspecifically provided in Sub-Rule 1 of Rule 3 of the Amended Rules of2008. Rule 11 of the said Amended Rules of 2008 also specificallyreiterates the said position about upgradation and designation of the postof PCCF as the Head of Forest Force in the State of Madhya Pradesh,as in other States and Union Territories.

D14. The High Court in the impugned orders passed in Writ Petitionas well as in the Review Petition had thoroughly misdirected itself byapplying the principle of “equal pay for equal work” placing reliance onthe decision of this court in case of State of Punjab and Ors. Vs. JagjitSingh and Ors. 2017 SCC 148, which had no application to the factsof the present case. It may be noted that this court has consistently heldEthat the equation of post and determination of pay scales is the primaryfunction of the executive and not the judiciary and therefore ordinarilycourts will not enter upon the task of job evaluation which is generallyleft to the expert bodies like the Pay Commissions. This is because suchjob evaluation exercise may include various factors including the relevantFdata and scales for evaluating performances of different groups ofemployees, and such evaluation would be both difficult and timeconsuming, apart from carrying financial implications. Therefore, it hasalways been held to be more prudent to leave such task of equation ofpost and determination of pay scales to be best left to an expert body.

Unless there is cogent material on record to come to a firm conclusionGthat a grave error had crept in while fixing the pay scale for a given post,and that the court’s interference was absolutely necessary to undo theinjustice, the courts would not interfere with such complex issues. Abeneficial reference of the observations made in this regard in case ofSecretary, Finance Department Vs. West Bengal Registration ServiceHAssociations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat PersonalStaff Association 2002 (06) SCC 72 “equal pay for equal work” is nota fundamental right vested in any employee, though it is a constitutionalgoal to be achieved by the Government.

15. Pertinently the Administrative Tribunal after considering therelevant factual and legal aspects had rightly rejected the claim of therespondent no. 1 for granting the apex scale on the basis of “equal payfor equal work” in the O.A. filed by him. The said well-considered, justand proper order of the Tribunal was wrongly set aside by the HighCourt on extraneous grounds applying the principle of “equal pay forequal work”, while exercising the power of superintendence under Article227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only inappropriate cases for the purpose of keeping the subordinate courts andtribunals within the bounds of their authority and not for correcting mereerrors. In the instant case, the Tribunal had not committed anyjurisdictional error, nor any failure of justice had occasioned, and hencethe interference of the High Court in order passed by the Tribunal wasabsolutely unwarranted.

16. In that view of the matter, the impugned orders passed by theHigh Court being thoroughly misconceived in law and in facts, deserveto be quashed and set aside and the same are hereby set aside. Theappeals are allowed accordingly.

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeals allowed.

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