Madhya Pradesh High Court
Dr.Sanjay Singh Parihar vs The State Of Madhya Pradesh on 10 March, 2010
(1)
THE HIGH COURT OF MADHYA PRADESH:PRINCIPAL SEAT
AT JABALPUR
WRIT PETITION NO.885/2009
Dr. Sanjay Singh Parihar
S/o Shri Prof. Shri R.B.Singh,
Aged about 43 years,
Asstt. Prof. Of Chemistry in the Govt. Model Science
College, Rewa
PETITIONER
Versus
1. State of Madhya Pradesh
Through the Secretary,
Higher Education Deptt. Ministry
Vallabh Bhawan, Bhopal
2. The Commissioner,
Higher Education Madhya Pradesh,
Satpura Bhawan, Bhopal (MP).
3. The Principal,
Govt. Model Science College,
Rewa M.P.
.. ... ..
RESPONDENTS
Shri R.Kesarwani, counsel for petitioner.
Mrs. Sheetal Dubey, Counsel for the State.
ORDER
( 10 .3.2010) The petitioner has sought following reliefs:
(I) It is, therefore,prayed that this Hon'ble Court may kindly be pleased to direct the respondents to count the services of the petitioner from the date of his initial appointment i.e. emergency services rendered by the petitioner for all purposes including seniority as well as grant of senior and selection grade pay scale and consequential benefits be granted to the petitioner also.
(ii) Any other relief, which this Hon'ble Court deem fit and proper in favour of petition may also be given in the interest of justice.
(2) The petitioner was appointed as an Assistant Professor in U.G.C. Pay scale of Rs.2200-75-2800-100-4000 by an order dated 8.11.1989. The appointment was by way of emergency and subject to appointment of the petitioner by selection through Madhya Pradesh Public Service Commission.(2)
(3) That, the petitioner due to some unavoidable circumstances could not pass/face PSC examination and without passing PSC examination he was allowed to continue on the post of Assistant Professor and performed his duties without any break. The respondent/department later on in the year 2003 passed an order on 19.12.2003. By the said order State Govt. had taken a decision that persons, who were appointed as Assistant Professors for emergency period, their services be regularized w.e.f. 24.12.1998 by relaxing age and educational qualification of Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rule, 1990. By the order dated 19.12.2003, petitioner services have been regularized by the respondents/department .The Principal, Govt. Model Science College informed the respondent/department for the benefit of senior grade pay scale to the petitioner for calculating the emergent services rendered by the petitioner. The petitioner has been awarded degree of Ph.D by the Awedhesh Pratap Singh University, Rewa.The petitioner had prayed for calculation of emergent services of the petitioner for the purpose of grant of senior and selection grade pay scale. But nothing was done.
(4) In the meantime, one Dr. (Smt.) Seema Raizada filed an Original Application before the Madhya Pradesh State Administrative Tribunal registered as O.A.No. 1763/2002 and by order dated 26.2.2001, she was granted relief. The petitioner again made a representation to the respondents but when the relief was not granted to the petitioner, petitioner approached to this Court by filing present writ petition.
(5) The learned counsel appearing for the petitioner submitted that the controversy involved in this case is squarely covered by a decision of this Court in Writ Appeal no.599/2008 (State of M.P. And another vs. Dr.Smt. Sandhya Prasad and others) and similar benefit may be extended to the petitioner.
(6) The learned counsel appearing for the State does not dispute the factual position that the controversy is squarely covered by a decision in Dr.Smt. Sandhya Prasad and others.
(3)(7) In the case of Dr.Smt. Sandhya Prasad, Division Bench of this Court considering the controversy held thus:
6. No doubt about it that this Court has consistently taken the view that such appointees are entitled for the benefit of higher pay scale by counting the services spent as emergency appointee. Emergency appointments are made under Rule 12(5) of the Rules of 1967 which reads thus :-
"12(5) : Emergency Appointments :- If Commission's panel of selected candidates is not available, the posts may be filled by emergency appointments in the following manners:-
(i) an advertisement shall be
issued by Government;
(ii) Applications for emergency
appointments shall be
submitted in the form
prescribed in Schedule V.
(iii) Applications received shall be registered and tabulated according to the following criteria -
Category Qualifications ................. ......................
The names will be arranged in each sub- category according to the marks secured by the candidates at the MA/M.Sc./M.Com.Examination:
Provided if and when Public Service Commission panel for these subjects is available, these teachers will be liable to be removed without notice."
7. It is not in dispute that advertisement was issued, selection committee was formed which has considered the cases of the employees, they were duly qualified for being appointed , their appointments have continued till their regularization and they were holding the similar pay scale in which they were regularized. Appointment was made in the pay scale not on fixed pay and there was no brake, they were not appointed as against any leave vacancy, the appointment was not on purely adhoc basis without following the procedure, the appointment was made under the aforesaid rule 12(5).
8. In the light of the aforesaid undisputed facts when we consider circular dated 12.2.92 issued by the State Government which has been relied upon by the Tribunal while rendering decision in case of Seema Raizada and Padma Shrivastava, a close reading of the circular dated 12.2.92 indicates that prior service rendered has to be counted for the purpose of grant of higher pay scale and selection grade pay scale on following conditions;(4)
(i) that the post held must be equivalent and carrying the same pay scale;
(ii) the qualifications of the post held should not be less than the prescribed qualification by the UGC for the post of lecturer;
(iii) at the time of appointment on the earlier post of which service is to be counted an incumbent must possess the minimum qualification prescribed by the UGC;
(iv) appointment on the post must have been made by the prescribed selection procedure by the State Government; and
(v) the appointment should not be purely adhoc or as against leave vacancy for less than one year.
When we apply the aforesaid five conditions in the instant case, one by one, it is not disputed that appointment of the employees was on the same post and in the same pay scale . Thus, the first condition stands satisfied. When we come to second condition as to the qualifications prescribed for the post, the post held was the same post and the qualifications possessed by incumbents were not less than that prescribed by the UGC, it is not the case of State that qualifications prescribed in advertisement were less. Thus, second condition also stands fulfilled. When we come to IIIrd condition, the incumbent was holding the minimum qualification prescribed by UGC at the time of appointment on emergency basis, they were holding the qualifications has also not been disputed. When we come to fourth condition it is admitted that selection was made as prescribed under Rule 12(5) of the Rules of 1967, since the appointment was made under Rule 12(5), the aforesaid IVth condition also stands satisfied. When we examine fifth and last condition it is apparent that appointment was made on emergency basis not on purely adhoc basis, it was not against any leave vacancy. For the purpose of appointment, prescribed procedure under Rule 12(5) was followed, appointment was made under the rules. Rules provide for emergency appointment and prescribed the procedure for that which was followed and ultimately the services were regularized. The State Government has taken the decision vide circular dated 12.2.92 for counting of such services for the purpose of higher pay scale and for selection pay scale, the benefit of which could not have been denied to the employees, thus, relief has to be given on the basis of the aforesaid circular dated 12.2.92. Though it is not necessary to go into the DO of the MP PSC in view of circular dated 12.2.92, but MP PSC has clearly mentioned in its DO dated 25.12.98 thus :-
" The Commission after seeking legal opinion on clause 1(e), has decided to include service rendered in adhoc capacity for counting of past service for placement in Senior Scale/Selection Grade, provided that the following three conditions are fulfilled :-(5)
"(a) The ad hoc service was of more than one year duration;
(i) the incumbent was
appointed on the
recommendation of duly
constituted Selection
Committee, and
(ii) The incumbent was
selected to the permanent
post in continuation to the
ad hoc service, without any
brake."
The Commission has taken the above decision.
The aforesaid three requirements also stand satisfied in the instant case. The instant case stand on better footing as the service rendered was not purely ad hoc, but it was under the rules as an emergency appointee, even ad hoc appointee in case has continued for more than one year duration and was selected by duly constituted selection committee and was later on selected to the permanent post in continuation to the adhoc service without any brake, his services has to be counted for placement in Senior Scale/Selection Grade as per aforesaid decision of PSC. In the instant case, the case of employees is much better. Thus, they could not have been denied the benefits of counting of their services rendered as emergency appointee and their past services ought to have been counted for the placement in Senior Scale/Selection Grade, we find that decision rendered by the single Bench to be in accordance with law and we do not find any ground to differ from the view taken by different Division Benches of this Court in several matters dismissing the writ appeals assailing the order passed by the single Bench or the writ petition preferred against the order passed by State Administrative Tribunal.
9. Shri Deepak Awasthy, learned GA has relied upon Division Bench decision of this Court in Saroj Goswami vs. State of M.P. and others (supra) in which petitioner was appointed on adhoc basis on a fixed pay of Rs.700/-. Division Bench of this Court held that fixed pay happened to be equivalent to the initial pay in a time scale,i.e.Rs.700/- Rs.1600/- does not mean that adhoc service was on a time scale. It was laid down by Division Bench of this Court that an incumbent is neither entitled for benefit of seniority nor pay scale. In the instant case ratio of the aforesaid decision is not at all attracted as seniority has not been given in any of the order passed by the single Bench, the benefit given is that of counting of the past services for the purpose of placement in the Senior Scale/Selection Grade and the said benefit is available as per Government circular dt. 12.2.1992. In the aforesaid decision of Saroj Goswami vs. State of M.P. and others (supra) the (6) appointment was made on adhoc basis which was not under the rules whereas the appointment in the instant cases was under
the Rules of 1967 and ultimately incumbents have been regularized. The appointment in the instant case was also on the pay scale, in the aforesaid decision appointment was on fixed pay, thus, decision is distinguishable. Even after following the aforesaid decision in its pith and substance, no dent is caused to the employees of the instant case as the relief is totally different, thus, ratio of said decision is not attracted.
10. Resultantly, we find no merits in the writ appeals preferred by the State Government. The same are dismissed. They are bound to count the services rendered by the employees as emergency appointee for placement of Senior Scale/Selection Grade. WP No. 24503/03 stands allowed. No costs.
As the controversy has been decided by this Court in Dr. Smt. Sandhya Prasad and others which judgment is applicable in the present case, this petition is also disposed of in terms of the direction issued by this Court in Dr.Smt. Sandhya Prasad. The aforesaid order shall be applicable in the case of all the petitioners mutatis mutandis. No order as to costs.
(Krishn Kumar Lahoti) Judge JLL