Madhya Pradesh High Court
Vinod Admache vs The State Of Madhya Pradesh on 28 September, 2010
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 6621 OF 2008 (S)
Vinod Admache & others
- V/s -
State of Madhya Pradesh and others
Writ Petition No : 2826 OF 2009
Shyamu Kumre
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 3143 OF 2009
Manish Kumar Gedam
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 3139 OF 2009
Chhabbilal Parte
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2892 OF 2009
Avtar Singh Markam
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2891 OF 2009
Mahendra Singh Parte
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2890 OF 2009
Dal Singh Thakur
- V/s -
2
State of Madhya Pradesh and another
Writ Petition No : 2889 OF 2009
Om Prakash Chaudhari
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2888 OF 2009
Pradeep Markam
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2887 OF 2009
Sunil Borkar
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 2827 OF 2009
V.K.Dhurve
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 6249 OF 2008
Atarlal Uike
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 4159 OF 2009
Kamal Kumar Inwati
- V/s -
State of Madhya Pradesh and another
Writ Petition No : 4157 OF 2009
Bhupendra Kumar Kori
- V/s -
State of Madhya Pradesh and another
3
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Rajesh Soni and Shri K.N.Pethiya, Advocate, for the
petitioners.
Shri Yogesh Dhande, learned PL, for the State.
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ORDER
( 28 -09-2010) As common questions are involved in all these writ petitions and as relief claimed are also identical, all these petition are being heard and decided by this common order. For the sake of convenience, the documents and pleadings available in W.P.No.6621/2008(s) are being referred to in this order
2. Challenging the order AnnexureP6 dated 29.4.2008 passed by the respondents adversely effecting the service conditions and pay scales of the petitioners, all these petitions have been filed.
3. The Office of Executive Engineer Public Health Department published an advertisement in the daily newspaper vide AnnexureP1 for the purpose of filling up 36 posts of S.C., S.T. Candidates i.e. Backlog posts. It was notified that the appointments are being made in the pay scale of Rs.35008040001005200/. Appointments were to be made for the posts of Hand Pumps Mechanics. Various conditions were stipulated in the advertisement and in Clause4 of the advertisement, it was stated that if the appointments are made in the Work Charge Establishment then the selected candidates shall be kept on probation for a period of two years and, thereafter, they will be considered for appointment as regular employees in the department. It was clearly 4 stipulated in the advertisement that the employees will be entitled for other benefits only after a period of two years.
4. Petitioners submitted their candidature, a District level Committee was constituted. All the petitioners were appointed on 13.8.2007 vide AnnexureP4. In the appointment order it was clearly stipulated that they are appointed in the Work Charge Establishment, they will be on probation for a period of two years from the date of assuming charge and, thereafter, considered for regular appointment on the post of Hand Pump Mechanics in the Pay Scale of Rs.35008040001005200/, apart from the above, nine conditions of appointment were stipulated in the order and it was adheard to. Petitioners joined the posts and started working on the post of Hand Pump Mechanics on the said pay scale and benefit sanctioned to them as is evident from the documents filed by the petitioners. However, all of a sudden, by the impugned order dated 29.4.2008, the service conditions of the petitioners are unilaterally changed and it is the case of the petitioners that vide order AnnexureP6 dated 29.4.2008 that they will be entitled to payment of salary on the basis of Collector rate i.e. as daily wages employees at minimum of the scale and benefit of regular pay scale will be extended to them only after a period of three years.
5. Aggrieved by the aforesaid, petitioners filed these writ petitions. Shri Rajesh Soni and Shri K.N.Pethiya taking me through the advertisement, the conditions stipulated in the advertisement and the statutory provisions with regard to appointment of the Work Charge Establishment as contained in AnnexureR1 emphasized that in these 5 statutory provisions, there is nothing to indicate that the employees appointed in the Work Charge Establishment would be paid wages at Collector Rate for the first period of three years and regular salary in the pay scale would be paid to them only thereafter.
6. It is the case of the petitioners that once the conditions for appointment were stipulated in the advertisement and the petitioners having participated in the process of selection and appointed on the same terms and conditions, thereafter, service conditions could not be changed unilaterally adverse to the petitioners and causing prejudice to them in the matter of recovering the pay and allowances.
7. Accordingly, contending that the respondents have changed the service conditions after the selection is made in an illegal and arbitrary manner, petitioners seek interference into the matter.
8. Respondents have filed the reply and it is pointed out by them that according to the amended provision of M.P. Work Charge and Contingency Paid Employees, Service Conditions Rules, an employee appointed in the Work Charge Establishment, for the first period of three years is only entitled to be paid salary on the Collector Rate and only after that he is brought in the cadre of regular employee i.e. after a period of three years. Even though, respondents have filed Annexure R1 in support thereof, which is statutory rule but in the document AnnexureR1, there is no such stipulation, however in a document filed in the connected petition i.e. W.P.No.2826/2009 referred to by Shri Yogesh Dhande as AnnexureR1 it is pointed out that the petitioners are only entitled to wages on Collector Rate for the first three years and salary in the pay scale of Rs.35008040001005200/ would be paid 6 to them only after a period of three years. Accordingly, respondents contend that the mistake has been committed by the Department in fixing the pay and the said mistake has been corrected and in doing so, there is no error on the part of the respondents.
9. I Have heard learned counsel for the parties and perused the records. From the records, it is clear that appointments of the petitioners were made to fill up the backlog posts lying vacant. When the advertisement was issued, it was clearly stipulated in the advertisement that the appointments were to be made in the pay scale of Rs.35008040001005200/ and the candidates, if appointed, in the Work Charge Establishment will remain on probation for a period of two years and, thereafter brought in the regular establishment. It was never stipulated in the advertisement that in the initial appointment for a period of three year employees would be entitled to wages fixed on Collector Rate and, thereafter, the salary as per the statutory provision would be paid.
10. Once the process of appointment is made in pursuance to the advertisement and the candidates applied for the same, then after the recruitment is made in pursuance to the same and benefit of the conditions stipulated in the advertisement extended to the petitioners, it is not appropriate for the respondents to withdraw the conditions stipulated in the advertisement and come out with a case that they have committed a mistake and, therefore, withdraw the benefits as per the conditions stipulated in the advertisement. The only ground raised that the provision is that circular AnnexureR1 filed in W.P.No.2826/2009 was not taken note of and, therefore, the mistake is corrected. 7 AnnexureR1 is a circular with regard to fixing of pay scale on the basis of Chaudhari Pay Commission Recommendation and conditions stipulated in the said circular is with regard to payment of salary to the employees after implementing the pay commission's recommendation. However, in this circular AnnexureR1, it is not indicated that the statutory rules are amended or the provisions and circulars have been made by amending the statutory provision. The circulars may have been issued in the matter of implementing the pay commission's recommendation, but when the decision is taken by the competent authority to fill the backlog posts by inviting the applications, and when the appointments were made as per a particular condition then the respondents cannot turn back and say that the pay scale was incorrect and, therefore, it is being withdrawn.
11. It is clearly stipulated in the advertisement that for the period of two years, the selected candidates would be on probation and, thereafter, the regular pay scale and increments would be granted to them. If the petitioners would have known that the salary will be paid to them on the basis of the Collector rate for a period of three years, they would not have participated in the process of appointment. Petitioners got interested in applying for the posts because of the indication made in the advertisement with regard to the pay scale.
12. Respondents having invited the applications and having permitted the petitioners to participate in the process of selection cannot turn back and now contend that a mistake has been committed. It is the case where the State Government cannot now, after the entire selection has been undertaken, turn back and change the conditions of 8 the selection. Petitioners having applied and having been appointed to the posts are entitled to receive the benefit as per the conditions stipulated in the advertisement in pursuance to which they have applied. In the absence of any statutory violation being pointed out, merely because the executive circular is not taken note of, respondents cannot be permitted to withdraw the benefits already granted as stipulated in the advertisement, which have adverse effect to the service conditions of the petitioners. The service conditions stipulated in the advertisement are being changed unilaterally and without the consent and approval of the petitioners, this is impermissible.
13. Once the advertisement is issued and recruitment took place in pursuance to the conditions stipulated in the advertisement, petitioners are entitled to receive the benefits of the same. Respondents can only change the conditions of the appointment and service only with the consent of the employees and not otherwise. Respondents now after a period of more than one year cannot say that they have committed a mistake, an executive circular has not been taken note of. On these grounds respondents cannot change the conditions of service of the petitioners causing disadvantages to the petitioners and adversely effecting their right to pay and allowances as per their terms of appointment.
14. It is a case where the respondents have called for the applications for appointment on the posts of Hand Pump Mechanics in the pay scale of Rs.35008040001005200/ and once the appointment is made, the terms of appointment cannot be changed unilaterally. 9
15. Accordingly, petitioners are right in contending that their service conditions cannot be changed now on the basis of alleged mistake said to have been committed. Respondents now, after a period of more than one year, cannot change the terms and conditions of appointment, this is impermissible. Accordingly, these petitions are allowed. Orders impugned AnnexureP6 dated 29.4.2008 are quashed and respondents are directed to grant benefit to the petitioners in accordance with stipulations contained in the appointment order AnnexureP4 dated 13.8.2007.
All these writ petitions stand allowed and disposed of. Benefits be extended to the petitioners and arrears paid within a period of two months from the date of receipt of certified copy of this order.
Petitions stand allowed and disposed of with the aforesaid. Certified Copy as per rules.
(RAJENDRA MENON) JUDGE nd 1