2009 Supreme(SC) 1624

2009(7) Supreme 163
SUPREME COURT OF INDIA
R. V. Raveendran and B. Sudershan Reddy,JJ.
State of Madhya Pradesh & Ors. — Appellants
versus
Yogendra Shrivastava — Respondent
Civil Appeal No. 3156 of 2007
Decided on : 07-10-2009

IMPORTANT POINTS
When there is conflict between the Statutory Rules and executive orders, statutory Rules will prevail.
2. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong.

Headnote:The Madhya Pradesh Employees State Insurance Service (Gazetted) Recruitment Rules, 1981- Rule (5) – Quantum of Non-Practicing Allowance payable to certain categories of Medical Officers belonging to State Insurance service- Application filed by respondents seeking a direction for payment of NPA in accordance with Rules – Case of respondents that whenever there was an increase in their basic pay, either on account of annual increments in the pay scale or on account of revision of pay scales, there should be corresponding automatic increase in the NPA in terms of the Rules which required payment of “NPA @ 25% of the pay”- The Tribunal accepted the contention and allowed their applications – Writ petitions-Dismissed by High Court – Appeals thereagainst – Contention of appellants that fixing of a lump sum as NPA, approximately equal to 25% of the initial pay in the applicable pay – scale, by executive orders issued by the Government from time to time, was in consonance with Rules was held unacceptable-The Rules made under Article 309 of Constitution clearly provided that the concerned employees (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-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 – The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders would prevail over Rules could not be accepted – Executive orders could not be made or given effect in violation of what was mandated by the Rules (Para 10)

        The Madhya Pradesh Employees State Insurance Service (Gazetted) Recruitment Rules, 1981 – Retrospective amendments of rules –Effect –Contention of appellants that as the Rules were amended in the year 2003 with retrospective effect from 14.10.1982, it should be deemed that the NPA payable was as notified by the government from time to time and not ‘25% of the pay’-. It is no doubt true that Rules 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 the existing rules cannot be taken away by amending the rules with retrospective effect-Therefore, held that while amendment, even if it was to be considered as otherwise valid, could not affect the rights and benefits which had accrued to the employees under the unamended rules-The right to NPA @ 25% of the pay, having accrued to the respondents under the unamended Rules, respondents-employees held entitled to Non-Practising Allowance @ 25% of their pay upto 20.5.2003 (Para 12)

       Facts of the Case :

        The question involved in these appeals filed by the State of Madhya Pradesh, relates to the quantum of Non-Practicing Allowance payable to certain categories of Medical Officers belonging to State Insurance service.

       Findings of the Court :

        Contention of appellants that fixing of a lump sum as NPA, approximately equal to 25% of the initial pay in the applicable pay-scale, by executive orders issued by the Government from time to time, was in consonance with Rules was held unacceptable. The Rules made under Article 309 of Constitution clearly provided that the concerned employees (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. 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. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders would prevail over Rules could not be accepted.Executive orders could not be made or given effect in violation of what was mandated by the Rules.