Madhya Pradesh High Court
Dr. Ganga Prasad Aharwal Vs State Of Mp ... vs The State Of Madhya Pradesh on 1 December, 2020
Equivalent citations: AIRONLINE 2020 MP 1587
1 WA-564-2020
The High Court Of Madhya Pradesh
WA-564-2020
(DR. GANGA PRASAD AHARWAL VS STATE OF MP AND OTHERS Vs THE STATE OF MADHYA PRADESH
AND OTHERS)
Jabalpur, Dated : 01-12-2020
Heard through Video Conferencing.
Per: Vijay Kumar Shukla, J.-
Shri Rajesh Kumar Patel, learned counsel for the appellant.
Shri Swapnil Ganguly, learned Deputy Advocate General for the
respondents/State.
Heard on I.A. No.7647/2020, which is an application for condonation of delay in filing the instant appeal.
As per Office note, there is delay of 8 days in filing the writ appeal. It is stated in the application that due to COVID-19 pandemic, the functioning of this Court was closed, and though the appeal was ready, but it could not be filed within the period of limitation. The appeal was filed immediately after issuance of the order of physical filing of the cases in the Court.
Taking into consideration the aforesaid, we are satisfied that there is sufficient cause for not filing the appeal within the prescribed period of limitation and, therefore, the delay is condoned.
The I.A. No.7647/2020 stands disposed of.
With the consent of the parties, the writ appeal is heard finally. This intra-court appeal is preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005 being aggrieved by the order dated 27-02-2020 passed by the learned Single Judge in WP-14286-2009 [Dr. Ganga Prasad Aharwal vs. The State of Madhya Pradesh and others], whereby the the writ petition filed by the appellant-petitioner has been dismissed.
The appellant-petitioner is a retired Govt. Ayurved Medical Officer. He retired from the service on 31-03-2004 on attaining the age of superannuation and after completion of 31 years of service without any 2 WA-564-2020 promotion, on the same post he was initially appointed. The appellant made representation to the respondents for grant of benefit of time-bound upgradation/promotion as per the scheme issued by the State Government from time to time. Since the representation of the appellant was not decided he filed a writ petition forming the subject-matter of WP-1790-2004 for grant of the aforesaid benefits as conferred to others. The said writ petition was disposed of by order dated 15-4-2004 directing the authorities to decide the representation of the petitioner-appellant as per the Scheme, if in force.
Thereafter, the appellant preferred the present writ petition agitating the grievance that he has not been extended the benefit of the revision of payscale and increments in terms of the Revision of Pay Rules, 1990 [for brevity "the Rules 1990"] on the due date, ever since 1991 and, therefore, prayed for a direction for revision of his pay and allowances retrospectively.
The respondents-State raised preliminary objection referring to the order dated 15-4-2004 and submitted that the petitioner-appellant had abandoned his claim of wrong fixation and non-extension of benefit of the revision of payscale, as the same was not claimed in the earlier writ petition, and the relief which was granted by this Court was only to consider his case for time-bound upgradation/promotion scheme and, therefore, the grievance as canvassed during the course of hearing cannot be countenanced.
In view of the aforesaid preliminary objection, the learned Single Judge dismissed the writ petition holding that the benefit of pay upgradation under the Scheme floated in the year 1997 for the Ayush Department has been extended to the appellant-petitioner and he was not entitled for the second Kramonnati Vetanman.
When a query was made to the learned counsel for the State that in case if the petitioner was entitled for the benefit of the Rules 1990 then whether non-claiming the same in the first round of litigation would amount to waiver/abandonment, because there can be no estoppel against the Rules 1990 ? The learned counsel for the State has drawn attention of this Court to 3 WA-564-2020 paras 6 and 7 of the return and submitted that even otherwise on merit, the petitioner-appellant is not entitled for the second benefit of Kramonnati Vetanman, as he was granted the same on completion of 12 years of services in the post of Ayurved Medical Officer. He referred to Clause 2 of the Circular, dated 19-4-1999. Paras 6 and 7 of the return being useful, are reproduced hereunder :
"6. That, on consideration of the aforesaid, it is clear that the policy of grant of Kramonnati on completion of 12 years of service for the post of Ayurved Chikitsa Adhikari was provided vide Circular dated 7-4-1997 in the Department of Ayush, whereas the policy for grant of benefit of higher payscale for other Departments comes into operation on issuance of the Circular dated 19-4-1999.
7. That, at this juncture, it would be relevant here to take into consideration the Circular dated 19-4-1999. Clause 2 of the Circular deals with how the Kramonnati have to be granted. On perusal of the same, it is clear that the Kramonnati on completion of 12 and 24 years is to be given, if the Government employee during the aforesaid period of service, has not been given any promotion/kramonnati/selection/upgradation. If the case of the petitioner is considered in Clause 2 of the Circular dated 19-4-1999, it is clear that the petitioner pursuant to Annexure-R/1 has already been granted Kramonnati in the payscale of Rs.3000-4500. The copy of the Circular dated 19-4-1999 is being filed herewith as Annexure-R/2."
It is borne out from the facts of the case that the appellant has completed 20 years of services in April, 1997 and, therefore, he was entitled for grant of second Kramonnati, which was wrongly denied to him. There cannot be any estoppel against the Rules 1990, as the appellant was entitled for the said benefit. Merely because in the first round of litigation the petitioner-appellant did not claim the benefit of the scheme, he cannot be denied the said benefit solely on the ground that he has failed to claim the same in the first round of litigation. There cannot be any estoppel against the Rules 1990 and there would be no constructive res judicata in the facts of the 4 WA-564-2020 present case.
In view of the aforesaid, we find that the learned Single Judge has erred while dismissing the writ petition. Accordingly, the impugned order passed by the learned Single Judge in the present intra-court appeal is set aside, holding that appellant would be entitled to the benefit of revision of payscale and increments in terms of the Rules 1990. The respondents are directed to grant the benefit of revision of his pay and allowances from the date of completion of his 24 years of services, i.e. April, 1997.
Ex-consequenti, the writ appeal is allowed. No order as to costs.
(SANJAY YADAV) (VIJAY KUMAR SHUKLA)
ACTING CHIEF JUSTICE JUDGE
ac
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2020.12.04 12:12:03 +05'30'