Madhya Pradesh High Court
Mahipal Singh Jeena vs Shri Govindram Seksaria Institute Of ... on 5 June, 2020
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
The High Court Of Madhya Pradesh
S.B. : HON'BLE MS JUSTICE VANDANA KASREKAR, JUDGE
WP-3014-2018
(MAHIPAL SINGH JEENA
Vs
SHRI GOVINDRAM SEKSARIA INSTITUTE OF TECHNOLOGY AND SCIENCE (AN
AUTONOMOUS GRANT IN AID INSTITUTION))
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Shri Shekhar Bhargava, learned Sr. Counsel along with Smt.
Ritu Bhargava, counsel for the petitioner.
Shri H.Y. Mehta, counsel for the respondent/s.
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ORDER
( Passed on 05/06/2020) The petitioner has filed the present writ petition against inaction of the respondent/s in not extending the benefit of second time pay scale to the petitioner as well as the order dated 19/02/2018 and 20/02/2018 Annexures Ex.-P/7 and P/8, thereby recovering the amount from the petitioner's retiral dues. 2 The petitioner was initially appointed in the respondent / institute as LDC on daily wages basis on 12/04/1979, however, subsequently, in pursuance to the open competition / advertisement, the petitioner was selected and appointed w.e.f. 01/04/1986. Before appointment on the post of UDC, the petitioner was dully regularized as LDC w.e.f 26/05/2081 and thereafter, on 28/07/1993, the petitioner was selected and appointed as Office Assistance (PG), thereafter, the petitioner was appointed as Registrar in the respondent / institution on 15/12/1997 by direct recruitment . The petitioner had become entitled for first time pay scale in the year 2006 and he was granted the same vide order dated 06/05/2010 w.e.f.
201/04/2006. As per the applicable rules, the petitioner and other Class A and B non-teaching staff, who are appointed by open selection procedure became entitled to grant of second time pay scale revision after 16 years of services. In the petitioner's case, he became eligible for the same on 15/10/2013. The case of the petitioner and other 79 employees , their names could be considered for the grant of above benefit in 2016 only, when five Members Committee was constituted for consideration of the case of the non-teaching staff for grant of the aforesaid benefit. Accordingly, the Committee, in its meeting, held on 07/04/2016, had considered the name of the petitioner and others 79 members of the non-teaching staff for grant of the above benefit of time pay scale revision pay.
3 Inspite of aforesaid recommendations, and on due approval of the then Director, the petitioner was discriminated again and subjected to hostile discrimination, as evident from the fact that while 79 employees had been granted benefit of second time pay-scale revision of pay and the same was denied to the petitioner. The petitioner therefore, submitted a representation to the respondent to extend him the said benefit, however, nothing was done in the matter. The petitioner, thereafter, sent a legal notice demanding second revision of salary immediately, so that when he retires a month later on 28/02/2018, his retiral dues be properly calculated, however, no action has been taken in the matter, therefore, the petitioner has to approach this Court. 4 This Court was pleased to issue notice to the respondents. After receiving the said notice ,the respondent has issued an order dated 19/02/2018 reversing the petitioner's pay fixation of 2006 and withdrawing even the first time pay scale revision; that had been sanction way back on 06/05/2010 w.e.f.
301/01/2006. Thereafter on 20/02/2018, the respondent went step ahead and since the petitioner is retiring w.e.f. 28/02/2018, calculated the petitioner's gratuity and leave encachment on the basis of his reduced salary.
5 Learned Sr. Counsel appearing on behalf of the petitioner submits that the impugned order passed by the respondent is illegal and arbitrary and violation of principle of natural justice. He submits that the said benefit has been extended to all other teaching staff members of the respondent / institution and continued to be granted as and when concerned employee completes 16 years or 20 years of service. He further submits that the petitioner has completed 39 continuous years of service in the respondent / institute and first time pay scale was given to him w.e.f. 01/04/2006, however, the said has been withdrawn by the respondent and recovered from his retiral dues and that too, without any show-cause notice or opportunity of hearing in the matter.
6 Counsel for the petitioner further submits that the respondent had tried to justify the denial of second time pay scale and withdrawal of first time pay scale on the basis of alleged objection of the respondent / Residence Audit Department Annexure R-5. He further submits that RAD notes itself is illegal and based on incorrect information. He further submits that after clarification dated 24/11/2017 by DTE Annexure-P/13 which is of a date prior to the audit note, there was no occasion for Director to seek Resident's Audit Opinion and that too, without putting up DTE's letter before it. The Director, DTE Bhopal, who obviously wrote on behalf of the State Government to make it very clear that the respondent /Institute, which had its governing body and its own set up, was competent to adopt time pay scale and grant 4 the benefit of time pay scale to its non-teaching staff, who were all direct recruits, without there being any promotional policy. 7 Learned Sr. Counsel further argues that one employee i.e. Manoj Pandit, who is working as an Assistant Engineer in the Institute / respondent, who in identical circumstances, had been sanctioned his first time pay scale on 23/05/2016, but the same was withdrawn vide order dated 17/03/2018 and recovery ordered, based on similar audit objection by Resident Auditor, stating that the post of Assistant Engineer was not in the set up of the State Government Engineering Colleges. Thereafter, during pendency of this petition, Manoj Pandit was actually regranted the withdrawn benefit so he withdrew his petition on 02/11/2018. Thus, the respondent has granted the benefit to similarly situated employees. RAD objection is based on the fact that the post of Registrar is not included in hierarchy of the post of the Institute and therefore, the petitioner is not entitled to get the said benefit.
8 The respondents in their reply have also stated that the petitioner has been promoted to various post during his service carrier and therefore, he is not entitled to get the benefit of second time pay scale.
9 In reply to this, learned Sr. counsel for the petitioner submits that as per the records, the petitioner was directly appointed on the post of Registrar through an advertisement and post of Registrar of the Institute is not a promotional post and therefore, he is entitled to get the benefit of the said scheme. 10 Learned counsel for the petitioner has relied upon the judgment passed by this Court in the case of Abhimanyu Vyas Vs. State of M.P passed in W.P. no. 10948/2018 decided on 15/03/2019. He further relied upon the judgment passed by 5 Division Bench of this Court in the case of Laxman Lal Rathore Vs. State of M.P and othes decided on 18/06/2019 reported in 2019 LABIC 3243 He has further relied upon the judgment passed by this Court in the case of Smt. Shashibala Chauhan Vs. tate of MP and others (W.P. no. 22983/2018 decided on 01/03/2019).
11 The respondents have filed their reply and in the reply, they have stated that when the matter pertaining to recovery from an employee is pending before the Full Bench of this Court in case of of State of M.P. Vs. Jagdish Prasad Dubey and the same has been adjourned sine-die therefore, present petition be also adjourned. He further submits that the petitioner was appointed as LDC on 26/05/1981 and thereafter, he was promoted on different posts as LDC, UDC, OS and Registrar. As the petitioner has been given the benefit of promotion, therefore, he is not entitled to get the benefit of time pay scale. He further submits that the scheme of granting advantage of time pay scale is only available to persons, where there is no venue of promotion. Apart of that, under the scheme of time scale, the post for which the petitioner was claiming, was not defined, therefore, benefit of time pay scale cannot be extended to the petitioner. He further submits that if the claim of the petitioner is accepted, then there will be ambiguity / disparity of the pay-scale of the post of Registrar in which college of answering respondent vis-a-vis Government Institutions from where petitioner is claiming the parity to be granted of the time scale. For the sake of reference, he has placed reliance upon the judgment delivered in the case of Chandiprasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 117 6 12 Heard learned counsel for the parties and perused the records.
13 The petitioner has filed the present writ petition against inaction of the respondent/s in not extending the benefit of second time pay-scales as well as the order of recovery issued by the respondent/s vide Annexure-P/7 and P/9. 14 The petitioner was initially appointed on the post of LDC on daily wages on 12/04/1979. He was regularized on the said post on 26/05/1981, thereafter, he was selected as UDC and then Office Assistant ( PG). In the year 1997, an advertisement was published for appointment on the post of Registrar. The petitioner applied for the said post and appointed as Registrar on 15/12/1997. Thereafter, in pursuant to the Scheme framed by the State Government for extending the benefit of time pay-scales to its employees. The respondent/s has granted first time pay-scale revision of salary to the petitioner vide order dated 06/05/2010. thereafter, a Committee was constituted for recommending second time pay-scale revision to the petitioner w.e.f. 15/12/2013, however, those recommendations have not been carried out. A letter was sent to DTE regarding grant of benefit of time pay-scale Scheme to all the post including Registrar vide letter dated 13/10/2017. In the meanwhile, on 24/11/2017, the DTE replyed to the respondent clarifying that the respondent / institute who has its own Governing Body, has supreme Authority to decide the matter.. The petitioner thereafter submitted a representation for grant of second time pay-scale to the petitoner, The petitioner, thereafter, submitted the present writ petition. This Court was pleased to issue notice to the respondents. After receiving notice, the Director has passed an order dated 19/02/2018, ordering recovery from the retiral dues of the 7 petitioner and the order dated 20/02/2018 sanctioning retiral dues of salary of 2006. The petitioner has challenged these both orders by way of making amendment in the petition. 15 Learned counsel for the respondent, in their reply has stated that there is audit objection Annexure- R/5. In the letter, it has been stated that the post of Registrar does not fall under the herarci of the post given under the recruitment rules and therefore, the petitioner is not entitled to get the benefit of the said time pay-scale. Second objection, which is reaised by the respondent is that the petitioner is working on the post of Registrar, which is a promotted post and therefore, he is not entitled to get the benefit of the Scheme framed by the State Government. So far as the objection regarding the post which is not mentioned in the Schedule of the Rules is concerned, this Court in the case of Abhimannu Vyas (supra) in para 8 has dealt with as follows :
08-The second important aspect of the case is that most of the employees of the University are being paid Time Bound Pay Scale and merely because the post of the petitioner does not find place in the notification issued by the State Government dated 24/01/2008, the petitioner cannot be denied up-gradation under the policy of Time Bound Pay Scale. Such an act is certainly violative of Article 14, 16 and 21 of the Constitution of India. The University is certainly discriminating the petitioner vis-à-vis other employees. If other employees have been granted the up-gradation under the Time Bound Pay Scale, the petitioner is also entitled for up-gradation from the same date from which other employees have been granted the 8 benefit. Employees placed in one institution cannot be denied the higher pay scale on a technical ground
16 That as per this judgment, the University could not deny the benefit of time bound pay-scale merely because the post of the petitioner does not find place in the notification issued by the State Government. Similar view has been taken by this Court in the case of Shashibala (supra). In light of the aforesaid objections raised by the auditor does not survive and deserses to be quashed.
17 So far as second objection raised by learned counsel for the respondent is that the petitioner has got promotted numbers of time during his service career, therefore, is not entitled to get the benefit of the Scheme framed by the State Government, is also not correct, because in the present case, an advertisement was issued by the respondent/s, and the petitioner had submitted his application for appointment on the said post and therefore, it cannot be said that the petitioner is promotted on the post of Registrar. It is also noted that the order of recovery has been passed by the respondent without issuing any notice or giving an opportunity of hearing to the petitioner. This Court, in the case of Laxmanlal Rathore (supra) has held that recovery of excess amount paid to the employee on his placement on higher pay-scale after retirement is not permissible. It is also well settled law that recovery of any excess amount cannot be made without giving any opportunity of hearing to the petitioner. 18 In light of the aforesaid discussions, present writ petition is allowed and the order impugned are hereby set aside. However, the respondents are directed to consider the case of the petitioner for grant of second time pay-scale in accordance with 9 law. The respondents are further directed to pay revised pay- scale, retiral dues etc. The entire exercise be completed within a period of three months from the date of receipt of certified copy of this order.
Present writ petition stands disposed of accordingly. C c as per rules.
( VANDANA KASREKAR ) JUDGE Digitally signed by AMOL N MAHANAG Date: 2020.06.08 13:58:36 +05'30'