Madhya Pradesh High Court
Ashfaq Hussain vs The State Of Madhya Pradesh on 28 September, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
W.P.No. 24226/2019
(Ashfaq Hussain Vs. State of M.P. and others)
Jabalpur, Dated : 28.09.2021
Shri Manoj Kumar Chourasiya, learned counsel for the petitioner.
Shri Shivam Hazari, learned PL for respondent -State.
The present petition has been filed being aggrieved by the an objection in the service book that Kramonnati pay scale/time scale pay which were granted to him prior to 1.1.2016 are impermissible because the petitioner was appointed under the work charged and contingency paid establishment and the employees who were appointed under the said establishment are not entitled to get the benefit of Kramonnati pay scale/Time Scale Pay (upgradation of pay scale) prior to 1.1.1016 as the scheme of Kramonnati pay scale is introduced w.e.f. 1.1.1016.
Initially the petitioner was appointed on temporary basis on the post of Driver in the respondent - department under the Blindness Prevention Committee. Subsequently in the year 1999 by an order dated 10.6.1999, petitioner's services were absorbed against the sanctioned vacant post of Driver in the Primary Health Centre, Gourihar, district Chhatarpur in the pay scale of Rs.350-4590/- and since then he is performing his duties continuously in the respondent department without any break.
It is stated that the Government of M.P. through G.A.D. formulated a Kramonnati Scheme dated 17.3.1999/19.4.1999 for grant of two Kramonnati on completion of 12 years and 24 years in case during their entire service career they are not promoted on higher posts. Circular dated 27/29.3.2001, besides regular employees, who were appointed under the Work Charged and Contingency Paid Employees were also included for benefit of Kramonnati Pay Scale.
2
It is submitted that the respondent no. 2 without any opportunity of hearing or show cause notice has made an objection in the service book of the petitioner that pay scales which were earlier granted to the petitioner are incorrect because the petitioner was appointed under the Work Charged and Contingency paid Establishment and such employees who are appointed Work Charged and Contingency paid Establishment are not entitled to get the said benefit of pay scales prior to 1.1.2016. The respondents have also started recovery, vide order dated 20.5.2019, (Ann. P-6).
It is submitted that the controversy has already been settled by the Supreme Court in the case of K.L. Asre Vs. State of M.P. and Others (W.P. No. 1070/2003, decided on 07.11.2005. Tejulal Yadav Vs. State of M.P. and Others (W.P. No. 11507/2007, decided on 23.01.2009.
He has further drawn attention of this court to the orders passed by this court in the case of Man Singh Thakur Vs. State of M.P. and Others (W.P. No. 5277/2014, decided on 17.4.2014, wherein considering the case of the K.L. Asre Vs. State of M.P. and Others, (supra) and Tejulal Yadav Vs. State of M.P. and Others, (supra), Hon'ble Court has held that the employee working under the worked charged contingency is entitled for benefit of Krammonati scheme.
Per contra, learned counsel for the State without filing the reply has opposed the prayer and has stated that the benefit of Krammonati scheme cannot be extended to the petitioner, as he has worked under the Worked Charged and Contingency paid Establishment and the recovery is not not liable to be quashed.
Heard the learned counsel for the parties and perused the record. The law with respect to grant of Kramonnati benefits to an employee working under the Worked Charged and Contingency paid Establishment is 3 settled by the Supreme Court recently in the case of Prem Singh Vs. State of Uttar Pradesh and others reported in (2019), 10, SCC, 516.
It is not disputed that the petitioner was working under the Worked Charged and Contingency paid Establishment, in such circumstances, the petitioner is entitled for the benefits of first and second time pay scale as he has rendered the services under the Worked Charged. The Supreme Court in the case of Prem Singh Vs. State of Uttar Pradesh and others, (supra) has held as under :-
"A submission was sought to be urged on behalf of the State of Uttar Pradesh to differentiate the case between work-charged employees and regular employees on the ground that due procedure is not followed for appointment of work - charged employees, they do not have that much pressure, they are unequal and cannot be treated equally, work- charged employees form a totally different class, their work is materially and qualitatively different. The submission is rejected since appointment of the work-charged employees in question was made on monthly salary and they were required to cross the efficiency bar also. Besides, their appointment was not made for a particular project which is the basic concept of the work- charged employees. Rather, the very connect of work- charged employment has been misused by offering the employment on exploitative terms of the work which is regular and perennial in nature. The work - charged employees had been subjected to transfer from one place to another like regular employees. (Paras 29 and 30) It was unfair and exploitative on the part of the State Government and its officials to take work from the employees on the work-charged basis for long period. Though their services were regularized later on, but the period spent by them in the work -charged establishment 4 has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work -charged establishment but have also been deprived of counting of the period for pensionary benefits.
(Para 31) In view of the Note appended to Rule 3 (8) of the 1961 Rules, there is a provision to count service spent on work-charged, contingencies or non - pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work -charged service can be counted as qualifying service for pension in the aforesaid exigencies. (Para 32) The question arises whether the imposition of rider that such service to be counted has to be rendered in- between two spells of temporary or temporary and permanent service is legal and proper. Once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed, it would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. An impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted 5 for one class, it has to be counted for all to prevent discrimination. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification. (Para 33) As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, it is necessary to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work- charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. Consequently, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.
(Paras 34 and 35) There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years and some of them have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC. The services of employees who had put in 10 years or more service is directed to be treated as regular. However, clarified that they shall not be entitled to claim any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work -charged 6 establishment shall be counted as qualifying service for purpose of pension. The arrears of pension shall be confined to three years only before the date of the order.
(Paras 36 and 37) In view of the aforesaid law laid down by Hon'ble Apex Court, it is clear that the petitioner is entitled to get the benefits of Kramonnnati.
As per opposition, made by learned counsel appearing for the State the reasons for denying the benefits that he has worked under the Worked Charged and Contingency, in such circumstances, refusal to extend the benefits is illegal. Thus, the order dated 20.5.2019, (Ann. P-6), whereby recovery is directed to be made is illegal and accordingly the same is quashed. The authorities are directed to extend the benefit of first and second time Kramonnati to the petitioner, if there is no other legal impediment.
The aforesaid exercise be completed within a period of three months from the date of receipt of certified copy of this order.
The petition is allowed.
(VISHAL MISHRA) JUDGE bks BASANT KUMAR SHRIVAS 2021.09.30 17:27:27 +05'30'