LexSTATE OF MADHYA PRADESH & ORS. versus YOGENDRA SHRIVASTAVA
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[2009] 14 $.C.R. 1137 " STATE OF MADHYA PRADESH & ORS. A _.. v. YOGENDRA SHRIVASTAVA (Civil Appeal No. 3156 of 2007) ~ OCTOBER 7, 2009 B -I [R. V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.] ~ "" i Service Law: c Madhya Pradesh Employees' State Insurance Service (Gazetted) Recruitment Rules, 1981: r. 5 - Medical Officers - Non-practicing allowance - Rule providing for NPA @ 25% of basic pay - Appointment letters D specifying NPA as fixed lump sum approximately equal to 25% of the minimum pay in the pay scale - Amendment to the rule by Notification dated 20.3.2003 with retrospective effect from 14.10.1982 to the effect that NPA would be payable at such rate as may be fixed by State Government - E HELD: Decision of Tribunal and High Court that the Medical Officers concerned were entitled to 25% of their pay as NPA upheld - The Rules made under Article 309 of the Constitution clearly provided that the medical officers were entitled to NPA @ 25% of pay, in addition to the pay in the .. pay scale - In fact, it formed part of the pay scale - F • / Consequently, whatever was the basic pay, 25% thereof had to be paid as NPA - Whenever the benefit of increments in the pay-scale or revision in pay scale were extended, NPA .. also got correspondingly increased so that NPA always remained as one fourth of the basic pay - This is the G .a, interpretation that has been put forth by the Tribunal and upheld by the High. Court and there is no reason to interfere with the same. 1137 H 1138 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. A Fixation of salary and claim for arrears - Limitation - HELD: Employees are entitled to recover the difference in NPA only in regard to the salary which accrued due during the three years prior to the dale of filing of the original applications by them before the Tribunal and not from the B date of their appointments - Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of /aches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on c continuing wrong - Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong 0 fixation made several years prior to the claim for correct payment - But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply - Therefore, the consequential relief of payment of arrears will have to be E restricted to a period of three years prior to the date of the original application - As a consequence, if the employers, in pursuance of the orders of the Tribunal/High Court, had paid the difference in NPA, for any period beyond three years before the date of the respective original applications, they will be at liberty to recover the same from the employees F concerned - Madhya Pradesh Employees' State Insurance Service (Gazetted) Recruitment Rules, 1981. Administrative law - Statutory Rules and executive orders - Conflict between HELD: The contention that the executive G orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted - When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail - Executive orders cannot be H made or given effect to in ·violation of what is mandated by . ·• ... STATE OF MADHYA PRADESH & ORS. v. 1139 ~ YOGENDRA SHRIVASTAVA • the Rl!les - If appointment letters provides for payment of A ,, NPA which is ndt in consonance with Rules, they can be I coffected or set right by Tribunals/courts - Madhya Pradesh " Employees' State Insurance Service (Gazetted) Recruitment Rules, 1981. Administrative law - Amendment to rules with 8 retrospective effect - HELD: It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect - But it is well settled that rights and benefits which have already been earned or acquired under c the existing rules cannot be taken away by amending the rules with retrospective effect - Therefore, the a
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