Madhya Pradesh High Court
Smt. Brijees Durrani vs The State Of Madhya Pradesh on 7 January, 2013
Writ Petition No. 5731 Of 2010 (S)
7.1.2013
Ms. Rajeshwari Nair, learned counsel for the petitioner.
Shri Rajesh Tiwari, learned Government Advocate for
respondent State.
With consent of learned counsel for the parties the matter is heard finally.
Non implementation of periodical pay revision since 1995 leading to nonsettlement of pension is the grievance which is being raised vide this petition by the petitioner who retired from the service of the respondents from the post of Tracer on attaining the age of superannuation w.e.f 26.2.2010.
Petitioner was initially appointed as Tracer on ad hoc basis on a fixed pay of Rs.169/ per month + usual allowances as sanctioned by the Government from time to time vide office order No. 2201/E234 of 74 dated 31.12.1974 issued by Superintending Engineer, Public Works Department, National Highway, Circle Bhopal.
That, by order No. 975/E dated 24.9.1975 services of the petitioner was regularized in Grade Rs.16941855240 eb627010300 along with 15 other employees. The petitioner continued to draw regular pay in the pay scale in which she was regularly appointed by order dated 24.5.1975; however, controversy arose in the year 1995 when an objection was raised by Joint Registrar (Treasury and Accounts) in respect of Revision of her pay scale on the ground that the petitioner was not possessing requisite qualification for appointment to the post of Tracer in the year 1975. It was stated that unless exemption is sought petitioner will not be entitled for revision of pay scale of the post of Tracer. Correspondence to that effect was entered into between the authorities of Public Works Department for seeking exemption from the State Government for regularizing the pay of the petitioner. It, however, did not bear any result and since the petitioner was retired on 26.2.2010 on attaining the age of superannuation, by order dated 23.2.2010, her pay was fixed at the minimum of scale of Rs.520020200. Thus, the petitioner has been deprived of the benefit of increment since 1995 and the revision of pay since 1996. Aggrieved and having been unsuccessful in getting any relief of her representation given to the State and its functionaries, the petitioner has filed this petition seeking direction to the respondents to grant increments since 1995 and pay revision since 1996 on the post of Tracer.
Respondents in their return have denied the entitlement of the petitioner. It is urged that as per Schedule III of M.P. Public Works Department (Non Gazetted) Service Recruitment and Condition of Service Rules, 1972, the prescribed qualification for the post of Tracer was matriculation with drawing as one of the subjects or a certificate of higher secondary (technical) examination from M.P. Board or any other recognized equivalent board. It is contended that the petitioner is simply higher secondary pass and is not qualified as per the criteria laid down in Schedule III of 1972 Rules. As such she was not eligible for being appointed to the post of Tracer. It is contended that when said mistake was detected in the year 1995, objections were raised and the petitioner's increment was stopped and no revision of pay was also allowed to the petitioner. It is, however, not disputed that the matter was pursued by the department since 1996 for grant of exemption treating the case as exceptional one; however, since no final order could be passed the petitioner's pay was fixed in the minimum in Grade Rs.520020200 and his pension has been settled accordingly. It is urged that the petitioner, however, has declined to accept the pension as settled. It is further contended that since the petitioner was not qualified to hold the post of Tracer she is not entitled for the pay scale of said post nor the pay revision effected in the year 1996 and subsequent thereafter.
Question which arises for consideration is as to whether the respondents are justified in denying the petitioner the grant of increment of the post of Tracer w.e.f. 1995 and of pay revision w.e.f. 1996 and subsequent pay revisions on the count that the petitioner at the time of her initial appointment as Tracer in the year 1975 was not possessing the requisite qualification. Another issue would be as to whether the State Government is justified in not considering the case of the petitioner as exception to grant exemption from having a minimum qualification for appointment to the post of Tracer taking into consideration that the petitioner had discharged her duties as Tracer for almost 20 years from 1975 to 1995 when the mistake was detected by the respondents.
It is not in dispute that for appointment to the post of Tracer in Public Works Department, the requisite qualification stipulated in Schedule III of 1972 Rules are "Certificate of having passed higher secondary school certificate examination or its equivalent with Drawing as one of the subjects from the M.P. Board of Higher Secondary Examination, or certificate from any other Board or institution recognized by the State Government in this behalf;
Or The certificate of Higher Secondary (Technical) Examination from M.P. Board or any other recognized equivalent board".
It is also not in dispute that though the petitioner is matriculate but does not have to her credit the higher secondary school certificate with Drawing as one of the subjects or a certificate of Higher Secondary (Technical) Examination. In other words she is a plain matriculate. Be that as it may.
These facts were well before the departmental selection committee which recommended the appointment of the petitioner on a regular basis in time scale of pay Rs. 16941855240eb627010300, culminating into an order dated 24.5.1975. Petitioner continued to discharge her duties and earned increments till 1995, i.e. for a period of 2 decades. It was in the year 1995 that the mistake was detected and the matter was taken up by the controlling authority in the year 1996 for seeking exemption from passing the requisite examination and referred to the State Government. However, no material has been commended at as would show that the State Government dwelt upon the recommendation of the controlling authority for grant of exemption treating the case of the petitioner as an exception.
Rule 20 of the Rules, 1972 empowers the State Government to grant relaxation. It stipulates:
"20. Relaxation Nothing in these Rules shall be construed to limit or abridge power of the Government to deal with he case of any person to whom these Rules apply in such manner as may appear to it to be just and equitable:
Provided that the case shall not be dealt with in any manner less favourable to him than that provided in these Rules"
In the considered opinion of this Court the present was a fit case for the State Government to have exercised the discretion vested in it under Rule 20 of 1972 Rules. The State Government; however, has not acted in due diligence, instead as kept the matter hanging since 1996 and the petitioner has been allowed to retire on attaining the age of superannuation w.e.f 26.2.2010 by fixing her salary on the minimum of scale of Rs.520020200 which is not the scale of the Tracer which the petitioner could have earned had there been a decision by the State Government.
In Bhagwati Prasad v. Delhi State Mineral Development Corporation [(1990) 1 SCC 361] it has been held by Supreme Court:
"6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed be tween the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications....."
In Buddhi Nath Chaudhary and others v. Abahi Kumar and others [(2001) 3 SCC 328], it has been held by he Supreme Court:
"6. The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup v. Stae of Haryana [1979 (1) SCC 168]; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [1990 (3) SCC 655]; and H.C. Puttaswamy v. Hon'le Chief Justice of Karnataka High Court, Bangalore [1991 Supp. (2) SCC 421]. Therefore, we must let the matters lie where they are."
Having regard to the factual aspects of the present case and the law as laid down by Supreme Court in Bhagati Prasad v. Delhi State Mineral Development Corporation (supra) and Buddhi Nath Chaudhary and others v. Abahi Kumar and others (supra), this Court is of the considered opinion that the petitioner is entitled for grant of regular pay scale of Tracer and the Revision of pay of the post of Tracer since 1996 and subsequent pay revisions. Let the same be done within a period of three months from the date of communication of this order and arrears of pay as well as pension be settled within the said period. The petitioner, however, shall not be entitled for the interest on the arrears.
Petition is allowed to the extent above. However, no costs.
C.c. as per rules.
(SANJAY YADAV) JUDGE Vivek Tripathi