Madhya Pradesh High Court
The State Of Madhya Pradesh vs Januma Prasad Dwivedi on 23 November, 2015
Bench: S.K.Gangele, Alok Aradhe
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
1. Writ Petition No.13259/2011(S)
Manoj Kumar Purohit and others............... Petitioners
Versus
State of Madhya Pradesh and others......... Respondents
2. W.P.No.12604/2009
Ravindra Kumar.................................................. Petitioner
Versus
State of Madhya Pradesh and others................. Respondents
3. W.A.No.710/2010
State of Madhya Pradesh and others................. Appellants
Vs.
Sunderlal Gohe............................................ Respondent
4. W.P.No.5887/2011
Rajendra Tiwari.......................................... Petitioner
Vs.
Registrar General........................................... Respondents
5. W.A.No.826/2011
Ved Prakash Pandey......................................... Petitioner
Vs.
State of Madhya Pradesh and others................ Respondents
6. W.P.No.16608/2011
Suresh Kumar Pateria.......................................... Petitioner
Vs.
State of Madhya Pradesh and others................. Respondents
7. W.P.No.2974/2012
Smt.Usha Mishra.............................................. Petitioner
Vs.
State of Madhya Pradesh................................ Respondents
8. W.A.No.280/2012
Jitendra Jhariya................................................. Appellant
Vs.
State of Madhya Pradesh and others.................. Respondents
1
2
AFR
9. W.A.No.444/2012
State of Madhya Pradesh and others.................... Appellants
Vs.
Smt.Sudha Sharma..................................... Respondent
10. W.A.No.354/2013
State of Madhya Pradesh and others.................... Appellants
Vs.
Narendra Kumar Khare..................................... Respondent
11. W.A.No.753/2013
State of Madhya Pradesh and others.................... Appellants
Vs.
Chaturbhuj Parashar..................................... Respondent
12. W.A.No.1007/2013
State of Madhya Pradesh and others.................... Appellants
Vs.
Munnilal Choudhary....................................... Respondent
13. W.A.No.1008/2013
State of Madhya Pradesh and others.................... Appellants
Vs.
Vijay Kumar Jain........................................... Respondent
14. W.A.No.1012/2013
State of Madhya Pradesh and others.................... Appellants
Vs.
Dadu Bhaiya Thakur....................................... Respondent
15. W.A.No.166/2014
State of Madhya Pradesh and others.................... Appellants
Vs.
Smt.Rashmi Singh......................................... Respondent
16. W.A.No.295/2014
State of Madhya Pradesh and others.................... Appellants
Vs.
Smt.Sanju Tiwari............................................ Respondent
17. W.A.No.902/2014
State of Madhya Pradesh and others.................... Appellants
Vs.
Sanjay Shivhare............................................ Respondent
2
3
AFR
18. W.A.No.903/2014
State of Madhya Pradesh and others.................... Appellants
Vs.
Rajnish Kumar Dronwat......................................... Respondent
19. W.A.No.202/2015
State of Madhya Pradesh and others.................... Appellants
Vs.
Mahendra Kumar Balmiki...................................... Respondent
20. W.A.No.233/2015
State of Madhya Pradesh and others.................... Appellants
Vs.
Januma Prasad Dwivedi....................................... Respondent
For the petitioners: Mr.D.K.Tripathi and Mr.Sanjay K.
Agrawal, Advocates
For the respondents: Mr.Samdarshi Tiwari, Deputy Advocate
General
====================================
Present: Hon'ble The Chief Justice Mr.A.M.Khanwilkar
Hon'ble Mr.Justice S.K.Gangele
Hon'ble Mr.Justice Alok Aradhe
--------------------------------------------------------------------------------------------
ORDER
(23/11/2015) Per: Alok Aradhe,J This reference arises from an order dated 27.08.2011 passed by the learned Single Judge in Writ Petition No.13259/2011(S), to consider the following question:-
"Whether an employee is entitled to increment from the initial date of appointment after his appointment in accordance to the Recruitment Rule and whether he can be denied increment on the ground of non passing of Hindi Typing Test due to the condition stipulated in the appointment order?"
2. Ordinarily, we must answer only the question as referred by the learned Single Judge, however, as other connected matters involving similar or overlapping issues have been directed to be linked with the leading writ petition in which reference order has been passed, we 3 4 AFR may have to examine the issues arising therein as well. After hearing the counsel appearing in the respective petitions, in this bunch of cases, we deem it appropriate to reformulate the questions which may have to be considered by us in all these matters as referred:
(A) Whether an employee is entitled to increment from the initial date of appointment or only from the date of passing of Hindi Typing Test, because of such condition specified in his letter of appointment? Further, is it open to the Appointing Authority to provide such a condition in the letter of appointment?
(a) When the Recruitment Rules expressly prescribe condition of passing Hindi Typing Test?
(b) When the Recruitment Rules are silent but the letter of appointment contains such stipulation about passing of Hindi Typing Test?
(c) When the Recruitment Rules provide that preference would be given to candidates who have passed Hindi Typing Test and the letter of appointment contains such stipulation?
(d) When the appointment is made under the Policy of Compassionate Appointment or Regularization specifying passing of Hindi Typing Test as essential and also the letter of appointment provides for that condition for entitlement of increment.
(B) When the appointment is made under the Policy of either Compassionate Appointment or Regularization and the Policy expressly provides that passing of Hindi Typing Test is essential, absence of such condition in the letter of appointment would make any difference.
(C) Whether decisions in the cases of State of M.P. v.
Onkarlal, 2011 (3) MPLJ 404 and State of M.P. vs. Ku.Ramani Bai Bhagat, 2013 (1) MPHT 96 lay down correct proposition of law?
3. Facts giving rise to reference, in nut shell, are that the petitioners in W.P.No.13259/2011 were appointed on compassionate basis on the posts of Lower Division Clerks (LDCs) in School Education Department of Government of Madhya Pradesh between 4 5 AFR the period from 27.3.1991 to 30.9.1997. Admittedly, the orders of appointment of petitioners contain a stipulation that within the period prescribed in the order of appointment it is mandatory for the petitioners to pass Hindi Typing Test. It is also not in dispute that petitioners have passed Hindi Typing Test beyond the period prescribed in the letters of appointment. The petitioners in the instant writ petition have sought a direction to the respondents to grant benefit of increment on completion of one year from the dates of their initial appointment alongwith interest.
4. We may now briefly refer to the facts of other connected matters. The appellants in Writ Appeals No.280/2012, 354/2013, 166/2014, 903/2014 and 295/2014 and petitioners in WP No.2974/2012 were appointed under the scheme of appointment on compassionate basis, whereas the employees in the remaining cases, namely, Writ Petitions No.826/2011, 5887/2011, 13259/2011 & 12604/2009, 16608/2011 and Writ Appeals No.1007/2013, 1012/2013, 233/2015, 710/2010, 444/2012 753/2010 and 1008/2013 were initially appointed and thereafter under the scheme of regularisation their services were regularized. The respondent in W.A.No.902/2014 was appointed in accordance with Recruitment Rules in Treasury Accounts Department and the Rules are silent with regard to passing Hindi Typing Test. However, letter of appointment contains such a stipulation, but the employees were deprived of the benefit of one increment. In the aforesaid factual background the employees have approached this Court with regard to their claim for 5 6 AFR grant of increment on completion of one year from the date of their initial appointment.
5. Learned Single Judge noticed that conflicting views have been expressed by the Division Benches of this Court in the cases of State of M.P. vs. Smt.Sushma Surana, 2005 (III) MPWN SN 116; State of M.P. and others vs. Vinod Mohan Shrivastava, ILR 2008 MP 1869 and by another Division Bench in the case of State of M.P.and another vs. Onkar Lal, 2011 (3) MPLJ 404. Accordingly, the order of reference was made.
6. Mr.D.K.Tripathi, learned counsel for the petitioners while referring to the decision of Supreme Court in the case of Dr.Rajinder Singh vs. State of Punjab and others, (2001) 5 SCC 482 submitted that service rules cannot be amended by a government order, circular or notification and the circular cannot override the statutory provision. In this connection, reliance was also placed on the Division Bench decision of this Court in 2013 (1) MPHT 96 [State of M.P. and others vs. Ku.Ramani Bai Bhagat] and decision of the Supreme Court in the case of Ajaya Kumar Das vs. State of Orissa and others, (2011) 11 SCC 136. It was also submitted that without amending the rule, the condition of passing Hindi Typing Test cannot be prescribed in the letter of appointment.
7. Mr.Sanjay K. Agrawal, learned counsel argued that since passing of Hindi Typing Test is not an essential eligibility qualification prescribed in Madhya Pradesh Treasury Clerical Services (Recruitment & Conditions) Rules, 1965, the benefit of increment 6 7 AFR cannot be denied to an employee. It was further argued that even if passing of Hindi Typing Test is an essential condition in the Rules, the benefit of increment cannot be denied to the petitioner in view of Fundamental Rule 25 as the petitioner was appointed on Time Scale of Pay. It was also urged that grant of annual increment is a matter of course and same cannot be withheld. In support of aforesaid submissions, reliance has been placed on the decisions rendered in the cases of Jageshwar vs. State of M.P. 1982 MPWN 275, Dongar Singh Pawar vs. State of M.P. and others, (2006) 3 MPHT 352 and Ku.Ramani Bai Bhagat (supra).
8. On the other hand, learned Deputy Advocate General submitted that petitioners in the Writ Petition No.13259/2011 as well as in other connected matters were appointed either on compassionate basis or by way of regularization and not in accordance with the Recruitment Rules. It is also pointed out that except in Water Resources Department and Public Works Department, in all other departments of Government of Madhya Pradesh, the requirement of passing Hindi Typing Test is mandatory qualification under the Recruitment Rules. However, in the rules governing the service conditions of employees of Treasury & Accounts Department, such a condition is not prescribed. It was also argued that even under the policies of regularization as well as compassionate appointment, the condition of passing Hindi Typing Test is mandatory and Fundamental Rules do not apply to the case of petitioners, as they have been appointed under the scheme, either of regularization or compassionate appointment. While referring to 7 8 AFR circular dated 10.6.1994 it was submitted that if an employee does not pass Hindi Typing Test even after attaining 40 years of age, his services would be regularized. It is further argued that even if the essential qualification is prescribed under the Rules, the State Government can always prescribe higher qualification and the appointing authority can lay down the requisite qualification. In support of aforesaid submissions reliance was placed on the decisions in the cases of S.Satyapal Reddy and others vs. Government of A.P. and others, (1994) 4 SCC 391 and Banarsidas vs. State of Uttar Pradesh, AIR 1956 SC 520. Lastly, it was pointed out that decisions in the case of Smt.Sushma Surana (supra) and Vinod Mohan Shrivastava (supra) lay down correct proposition of law and have been approved by another Division Bench in the case of State of Madhya Pradesh vs. Sunderlal Mehra vide order dated 07.8.2012 passed in Writ Appeal No.73/2011.
9. We have considered the rival submissions made at the Bar. Before proceeding further, the nature of appointment and the scheme under which the appointments have been made, may be taken note of. The petitioners have been appointed by the following three modes:-
(i) in accordance with the Recruitment Rules;
(ii) under the scheme of regularisation; and
(iii) under the scheme of appointment on compassionate basis.
(i) Under the Scheme of Appointment in accordance with the Recruitment Rules The Recruitment Rules of various Departments prescribe the procedure for recruitment. The process of recruitment under the said 8 9 AFR Rules is initiated by issuance of an advertisement, by which, the applications are invited from eligible candidates possessing educational qualification prescribed under the Recruitment Rules. The application of each such candidate is scrutinized by the Selection Committee and thereafter appointment of the most meritorious candidate(s) is made against the vacant substantive post. It is pertinent to mention that in all the Departments, except in the Water Resources Department and Public Works Department, the requirement of passing Hindi Typing Test for the post of Lower Division Clerk is a mandatory qualification. The Recruitment Rules of Public Works Department and Water Resources Department provide that preference shall be given to the candidate who has passed Hindi Typing Test, whereas the Madhya Pradesh Treasury Ministerial Service (Recruitment and Conditions of Service) Rules, 1965 are silent in this regard.
(ii) Under the Scheme of Regularisation:
The Government of Madhya Pradesh had issued instructions on 09.1.1990 for regularisation of appointment of the concerned employees not appointed in accordance with the Recruitment Rules. Clause 3 of the aforesaid instructions deals with the process for appointment of those employees, who have either been appointed on daily wage basis or working under the worked charged in contingency paid establishment prior to 31.12.1988. Clause 3 of the aforesaid instructions provides the procedure for making an appointment. The clause 3.5 of the aforesaid instructions reads as under:-
"3¼5½- fu;qfDr ds fy;s lEcf/kr in ds fy;s fu;eksa esa fu/kkZfjr 'kS{kf.kd ,oa vU; ;ksX;rk,Wa j[kuk vfuok;Z gksxkA ftu O;fDr;ksa 9 10 AFR ds ikl fu/kkZfjr ;ksX;rk,Wa ugha gSa] muds fu;fer osrueku esa fu;qfDr ij ,slh ;ksX;krk,Wa gkfly dj ysus ij fopkj fd;k tk ldsxkA"
Thereafter, the State Government by instructions dated 19.2.1990 provided that in case Lower Division Clerk has not passed Hindi Typing Test, he should be appointed against the vacant post subject to the condition that he shall have to pass Hindi Typing Test within a period of one year, and until and unless he passes Hindi Typing Test, he shall not be entitled to the benefit of annual increment. The said instructions dated 19.2.1990, issued by State Government, read as under:-
bl foHkkx ds Kkiu dzaekd 16&1188&1&os-vk-iz-&89] fnukad 9 tuojh] 1990 dh dafMdk 3¼5½ esa ;g mYys[k gS fd fu;fer fu;qfDr ds fy;s lEcf/kr in ds fy;s fu;eksa esa fu/kkZfjr 'kS{kf.kd ,oa vU; ;kstuk,Wa j[kuk vfuok;Z gksxkA bl 'krZ ds dkj.k fuEu Js.kh fyfid ds in ij fu;qfDr esa dbZ ofj"B deZpkfj;ksa dks dfBukbZ vk jgh gSA bl ij lgkuqHkwfriwoZd fopkj dj jkT; 'kklu }kjk bl foHkkx ds Kkiu dzekad 146@75@1@os-vk-iz-@88] fnukad 2&4&88 dks vf/kdzfer djrs gq, ;g fu.kZ; fy;k x;k gS fd fgUnh eqnzys[ku ijh{kk ikl u gksu ij Hkh deZpkfj;ksa dh fu;qfDr fjDr inks ds fo:) dj nh tk;s rFkk blesa ;g 'krZ j[kh tk;s fd fu;qfDr ds i'pkr~ ,d o"kZ dh vof/k ds vUnj mUgsa eqnzys[ku ijh{kk ikl djuk gksxkA tc rd os eqnzys[ku ijh{kk ikl ugha djsxa s rc rd mUgsa osru o`f) dk YkkHk ugha feysxk vkSj mudh fu;qfDr fu;fer ugha ekuh tk;sxhA Thus, it is evident that under the policy of regularisation a candidate is required to possess educational qualification including passing of Hindi Typing Test, which is prescribed under the Rules.
(iii) Under the Scheme of Compassionate Appointment The General Administration Department of Government of Madhya Pradesh by order dated 10.6.1994 formulated a scheme for providing compassionate appointment. Clause 20 of the aforesaid Policy provides that it would not be necessary for the widow of a 10 11 AFR government servant to pass Hindi Typing Test, but in cases where children of deceased government servants are given appointment on compassionate basis, their services shall be regularized only after passing of Hindi Typing Test or on attaining the age of 40 years, whichever is earlier. Clause 20 of the policy reads as under:-
¼chl½- fuEu Js.kh fyfid ds in ij] vuqdEik ds vk/kkj ij] fu;qDr dh xbZ LoxhZ; 'kkldhd lsod dh fo/kok dks fgUnh eqnzys[ku ijh{kk mRrh.kZ djus dk cU/ku ugha gksxk] ysfdu LoxhZ; 'kkldh; lsod ds cPpksa dh vuqdEik fu;qfDr ds ckn mldh vk;q 40 o"kZ gksus vFkok muds }kjk fgUnh eqnzys[ku ijh{kk mRrh.kZ djus dh frfFk ls] buesa ls tks Hkh igys gks] mudh fu;qfDr fu;fer dh tkosxhA Thus, it is evident that under the policy of regularisation and policy of appointment on compassionate basis, the condition of passing Hindi Typing Test is prescribed as a precondition for regularization of services.
10. Admittedly, the employees in the instant appeals/petitions have been appointed either under the policy of regularisation or under the policy governing grant of appointment on compassionate basis. Thus, the Scheme under which the petitioners have been appointed itself provide for Hindi Typing Test as mandatory condition for regularization of their services.
11. After having noticed the modes of appointment, we may proceed to deal with the questions which arise for consideration ad seriatim.
(a) Question No.(A)(a):
Indisputably, when the Recruitment Rules stipulate that the candidate in order to be eligible for appointment to the post of Lower Division Clerk, should have passed Hindi Typing Test, then the 11 12 AFR appointee would be entitled to the grant of benefit of increment only after passing the Hindi Typing Test. In such cases, the initial appointment itself will be a conditional appointment.
(b) Questions No.(A)(b) and (c):
We may now examine another situation, namely, whether in the absence of any prescription in the Rules with regard to Hindi Typing Test or where such Rules provide for preference to the candidates who have passed Hindi Typing Test, is it permissible for the State to prescribe such a qualification in the letter of appointment as per the qualification prescribed in the public notice inviting application?
The expression "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond retirement in the matters like pension. [See: I.N.Subba Reddy v. Andhra University, AIR 1976 SC 2049 and Lilliy Kurian vs. Sr.Lewine, AIR 1979 SC 52]. Thus, passing of Hindi Typing Test after joining the service becomes a condition of service, be it for regularisation or grant of increment. It is well established that a new service condition may be brought into effect by an executive instructions and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a Rule made under proviso to Article 309 of the Constitution or by a statute. A specific stipulation of passing the Hindi Typing Test can always be prescribed in the absence of any specific bar in the Rules. [See: Sitaram Jivyabhai Gavali vs. Ramjibhai Potiyabhai Mahala and others, AIR 1987 SC 1293]. Similar view 12 13 AFR has been taken by the Supreme Court in the case of Punjab National Bank and another vs. Astamija Dash, (2008) 14 SCC 370. The Supreme Court in the case of State of Rajasthan and others vs. Rajendra K. Verma, (2004) 13 SCC 706 has held that an employee would be entitled for regularization of his services from the date when he passes the test as stipulated in the order of State Government. Therefore, in cases where the Rules are silent about passing of Hindi Typing Test or provide that preference will be given to candidate who passed Hindi Typing Test but the letter of appointment contains such a stipulation, then the employee would be entitled to increment only after passing Hindi Typing Test and not from the initial date of appointment.
(c ) Question No.(A)(c):
Now, we may deal with another situation, namely, the case where, in the Rules it is provided that the candidates who have passed Hindi Typing Test shall be given preference at the time of appointment and letter of appointment contains such a stipulation. Such a condition has been incorporated in the Recruitment Rules governing service conditions of employees of Public Works Department and Water Resources Department.
It is indeed the prerogative of the employer to prescribe qualification including higher qualification and lay down suitable service conditions in respect of a post. In Banarsidas (supra) and S.Satyapal Reddy (supra) it has been held that the employer besides prescribing the minimum qualification can always prescribe higher qualification for appointment. It can prescribe any qualification 13 14 AFR which is not less than the qualification prescribed in the Rules. The Supreme Court has held that there is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catena of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our Constitutional scheme and notwithstanding the preference Rule, it is always open to the recruitment agency to prescribe a minimum qualification with a view to demarcate and narrowing down the field of choice with ultimate objective of permitting the candidates with higher qualification to enter the zone of consideration. [See: Government of Andhra Pradesh vs. P. Dilip Kumar, (1993) 2 SCC 310]. Similar view has been taken by the Supreme in the case of Surinder Singh Vs. Union of India and others, (2007) 11 SCC 599.
Thus, it is evident that where the Recruitment Rules provide that preference would be given to the persons possessing the certificate of Hindi Typing Test; it is open to the State Government to prescribe the qualification of passing Hindi Typing Test as essential and to make it mandatory. For the same reason, the State Government can prescribe such a qualification in the letter of appointment. The provision regarding preference gets exhausted at the time of entering the service; and despite prescription of such preference in the Rules, if a person who does not have such qualification, is allowed to enter the service, such a condition can always be prescribed in the appointment letter of such employee in view of aforesaid enunciation of law by the Supreme Court. 14 15
AFR
12. Question No.(A)(d) and (B):
The employees in the instant appeals/petitioners except in Writ Appeal No.902/2014, as stated supra, have been appointed either under the policy of compassionate appointment or under the policy of regularization. Admittedly, the policies under which the employees in writ petitioners/appeals were appointed contained a stipulation that they would be entitled to increment only after passing Hindi Typing test. The said policy has not been questioned. The petitioners joined the services with that clear understanding. Thus, the petitioners have acquiesced of that condition and have acted upon it. Resultantly, even in the absence of such stipulation in the letter of appointment, the concerned employee would become entitled to increment only after passing the Hindi Typing Test.
13. Question No. (A)(d):
Similarly, where an employee who has been appointed either under the scheme of compassionate appointment or regularization and his letter of appointment also contains a stipulation that he would be entitled to grant of increment only after passing Hindi Typing Test, in such cases also the employee would be entitled to increment only after passing the Hindi Typing Test. As stated supra, the employees in writ petitions/appeal have neither challenged the condition incorporated in the policy nor in the letter of appointment. But, on the contrary, have acquiesced with the same and, in fact, have acted upon it.
Therefore, the petitioners cannot be permitted to "blow hot and cold" or "approbate and reprobate". Henry N. Herman in his 15 16 AFR commentaries volume 2 pages 864-865 has observed that no one can maintain an action for a wrong which he has consented to the act which occasions his loss. [See: Law of Estoppel & Resjudicata 4th Edition by Chief Justice M.Monir & A.C. Moitra]. Where one knowingly accepts the benefits of a contract or conveyance or any order, he is estopped from denying the validity of or the binding effect of such contract or conveyance or order upon himself. [See: R.S.I.D.I Corporation v. Diamond and Gem Development Corporation Ltd., (2013) 5 SCC 470].
14. Question No.(C):
At this stage, we may also notice the Division Bench decisions, which have been referred to by the learned Single Judge in the order of reference. In case of Smt.Sushma Surana (supra) the petitioner was appointed on the post of Lower Division Clerk with the condition mentioned in the letter of appointment that she is required to pass Hindi Typing Test within a period of two years from the date of her appointment. But, the petitioner could not pass the Test. The State Government by circular dated 19.2.1990 provided that the employees who could not pass Hindi Typing Test and have completed 40 years of age, such employees would not be required to pass Hindi Typing Test, their services will be regularized on the post of Assistant Grade-III. In the aforesaid case, the requirement of passing Hindi Typing Test was not prescribed in the Rules. The Division Bench accordingly held that since the petitioner has not passed the Hindi Typing Test, she cannot claim regularization from the date of her initial appointment but from the date of regularistaion in terms of 16 17 AFR circular dated 19.2.1990. Similarly, in the case of Vinod Mohan Shrivastava (supra) the respondent was appointed on compassionate basis under the policy which contains a clear stipulation that the grant of regular increment shall be subject to passing of Hindi Typing Test. In the aforesaid case also there was no stipulation in the Rules prescribing passing of Hindi Typing Test.
15. In the case of Onkar Lal (supra) another Division Bench dealt with the case of an employee who was appointed in accordance with Rules, namely, M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969. The eligibility criteria prescribed in the Recruitment Rules for the post of Lower Division Clerk was passing of matriculation or equivalent examination. However, the Rules provided that preference shall be given to those possessing certificate in typing. The letter of appointment of the employee contained the stipulation that candidate will have to pass Hindi Typing Test within 2 years to earn regular increments. The Division Bench held that passing of Hindi Typing Test, not being an essential qualification for the purpose of "recruitment to the said post", imposition of such pre- requisite condition for releasing the increment cannot be said to be justified and same was held to be contrary.
16. In the case of Ku.Ramani Bai Bhagat (supra) another Division Bench had an occasion to consider the case of an employee whose order of appointment contained a stipulation that he would be entitled to grant of increments after passing Hindi Typing Test. The Recruitment Rules provided that preference would be given to candidates who have passed the Hindi Typing Test. The Division 17 18 AFR Bench held that denial of benefit of increment is contrary to Fundamental Rules by relying on Fundamental Rule 24 and it was held that condition in the order of appointment is contrary to Fundamental Rules and an executive instruction cannot override eligibility conditions prescribed in the Recruitment Rules.
17. Even if contention of the petitioners that provisions of Fundamental Rules apply to their cases, is accepted, even then, same is of no assistance to the petitioners as under Fundamental Rule 24, an increment shall ordinarily be drawn as a matter of course unless it is withheld. Fundamental rule 24 reads as under:-
"F.R.24. An increment shall ordinarily be drawn as a matter of course unless it is withheld."
The expression "ordinarily" used in Fundamental Rule 24 intrinsically recognizes, that there can be deviation which can be justified by reasons. The expression 'ordinarily' does not promote a cast iron rule, and it is flexible and is never used in a case where there are no exceptions. The exceptions implied by expression need not be limited to those specially provided for by law. [See: Union of India vs. Majji Jangamayya (1997) 1 SCC 607 and Mohan Baitha vs. State of Bihar (2001) 4 SCC 350]. Thus, even under Fundamental Rule 24 itself an increment can be withheld, by imposing a condition with regard to entitlement of the same, by an executive order in the absence of any express prohibition in the Rules. Similarly, the contention of the petitioners that Rules cannot be amended by an order issued by the State Government also does not 18 19 AFR deserve acceptance as the issue involved in this case is not of amendment of Rules by an executive order.
In this regard reference may be made to Fundamental Rules 9(28) and 9(31)(a) , which read as under:-
"9(28). "Substantive pay" means the pay inclusive of special pay sanctioned in lieu of higher time-scale of pay, other than special pay, personal pay or emoluments classed as pay under Rule 9(21)(a)(iii) to which a Government servant is entitled on account of a post to which he has been appointed substantively or by reason of his substantive position in a cadre.
9(31)(a). "Time-scale pay" means which, subject to any condition prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressive."
A conjoint reading of Fundamental Rule 9(31)(a) and Fundamental Rule 9(28) would make it clear that mere appointment in time scale of pay does not entail in automatic rise in pay necessarily adding periodical increment unless a person become entitled to draw substantive pay. The non-compliance of condition of passing Hindi Tying Test makes the appointment temporary and not substantive. Therefore, such temporary employee is not entitled to draw increment as per Fundamental Rule 22(b). Thus, the contention that benefit of increment cannot be denied to an employee who is appointed on time scale of pay also cannot be accepted.
18. As considered above, in our opinion, there is no conflict in the opinions expressed by Division Benches, as same is in relation to the facts of respective cases. Besides that, the decision rendered in the case of Smt.Sushma Surana (supra) was considered by another Division Bench in the case of Sunder Lal Mehra (supra) wherein the 19 20 AFR decisions rendered in the cases of Smt.Sushma Surana (supra) as well as Vinod Mohan Shrivastava (supra) have been followed. For the reasons already assigned by us, we hold that decisions rendered in Onkar Lal (supra) and Ku.Ramani Bai Bhagat (supra) do not lay down the correct proposition of law and are accordingly overruled.
19. While parting we make it clear that we have not dealt with the situation where neither the Recruitment Rules nor the Policy governing appointment on compassionate basis or regularization, as well as the letter of appointment does not provide for requirement of passing Hindi Typing Test. The question whether, in such a case, the condition of passing Hindi Typing Test can be prescribed by an administrative or executive order for entitlement to increment "after the person has entered the service". That question does not arise in the fact situation of the present cases.
20. Thus, in view of preceding analysis, reference is answered by stating as follows:-
(i) Question (A)(a):
An employee appointed in accordance with the Recruitment Rules which makes passing of the Hindi Typing Test essential, would be entitled to increment only after passing such test.
(ii) Question (A)(b):
If the Recruitment Rules are silent with regard to entitlement to the grant of increment on passing the Hindi Typing Test, then in such a case if the requirement of passing Hindi Typing Test is incorporated in the letter of appointment, the employee would be entitled to increment only after passing the Hindi Typing Test. 20 21
AFR
(iii) Question (A)(c):
Where the Recruitment Rules provide that preference would be given to the candidate who has passed Hindi Typing Test, in such a case also the employee would not be entitled to grant of increment, if the order of appointment contains such a stipulation. He would be entitled to grant of increment from the date of passing Hindi Typing Test.
(iv) Question (A)(d):
Where under the policy as well as letter of appointment provide for passing of Hindi Typing Test, in such a case the employee would be entitled to increment only after passing Hindi Typing Test.
(v) Question (B):
If an employee has been appointed under the policy either of compassionate appointment or regularization and if policy provides for requirement of passing Hindi Typing Test essential, the concerned employee would be entitled to benefit of increment only after having passed Hindi Typing Test, even in the absence of such a stipulation in the letter of appointment.
(vi) Question (C):
The decisions rendered in the cases of State of M.P. vs. Onkarlal, 2011 (3) MPLJ 404 and State of M.P. and others vs. Ku.Ramani Bai Bhagat, 2013 (1) MPHT 96 do not lay down correct proposition of law.
Accordingly, the reference is answered.
21 22
AFR
21. Let the matters be placed before appropriate Benches for further consideration.
(A.M.Khanwilkar) (S.K.Gangele) (Alok Aradhe)
Chief Justice Judge Judge
RM
22