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2001 DIGILAW 16 (CHH)

JAWAHAR SINGH v. STATE OF M. P.

2001-02-20

L.J.SINGH

body2001
ORDER 1. The applicant has filed this petition with a prayer that the respondents be directed to sanotion two advance increments of pay to the applicant from 29-3-97 and fixation of last pay of the applicant. He has also prayed that arrears of the pay of the applicant be paid to the applicant and in future also when the pay fixation of the applicant is done, this increment he added at the rate which is applicable at the time of pay fixation. Further prayer of the applicant is that whenever the applicant is promoted his increment be added at the rate which is applicable at the time of promotion. 2. Main contention of the applicant is that the applicant is working as Sub-Engineer under the Govt. of M.P. in Water Management Division, Rudri, Dhamtari, M.P. In order to make the family benefit scheme popular and encourage the Govt. employees on above subject the State of M.P. took the decision that advance increments would be sanctioned to those employees who have two living children and who or whose wives have undergone family planning operation, the order of the Govt. is Annexure A-I. The applicant was posted as Sub-Engineer in Water Resources Division. He had two children living. The wife of the applicant had under gone through Family Planning Operation. The operation was done on 18-7-1987, the certificate of operation is Annexure A-2. The applicant submitted his representation alongwith the medical certificate. The increments were sanctioned to the applicant but it was stopped from 19-3-92 and from 1996. The applicant placed his grievance before the respondent no. 2 vide application dated 5-1-99 Annexure A-3, but it has not been decided, no the applicant has filed this petition. 3. The respondents have filed their return. The contention of the respondents is that the applicant was paid two advance increments in view of Family Planning Operation of his wife from 18-7-87. As per respondents the applicant has been paid two advance increments from 18-7-87. Further contention of the respondents is that in view of Memorandum of the Govt. of M.P. Finance Department No. 38/R/I/II 90 dated 4-2-90 and the Memorandum issued by the Chief Engineer of Water Resources Department dated 4-5-90 a Sub-Engineer who has completed 12 years of service was paid the salary in the pay scale of Rs. 2000-60-2600-75-2900. Further contention of the respondents is that in view of Memorandum of the Govt. of M.P. Finance Department No. 38/R/I/II 90 dated 4-2-90 and the Memorandum issued by the Chief Engineer of Water Resources Department dated 4-5-90 a Sub-Engineer who has completed 12 years of service was paid the salary in the pay scale of Rs. 2000-60-2600-75-2900. The applicant completed 12 years of his service on 28-3-92 but his wife was operated before he completed 12 years of service, hence the applicant is not entitled for further increments since he has already been granted two advance increments. The respondents have also contended that there is a provision for advance increments in view of Family Planning Operation but there is no provision of additional increments of pay. In so many words the respondents have contended that the applicant is not entitled for the relief claimed in the petition. Repeatedly the respondents have contended that the applicant was granted two advance increments on 18-7-87, it was considered as a part of basic pay of the applicant dated 22-1-88 and dated 22-1-89 were included and the applicant's pay was fixed as 1690/- and on the basis of this aspect, the applicant has been paid the salary in the pay scale of Rs. 1600-50-2300-60-2920. 4. The respondents have contended that the applicant has not filed any application for keeping the advance increments separate from the basic pay, hence the case of the applicant was not considered otherwise it would have been considered. 5. The last contention of the respondents is that the applicant is not entitled-for the relief claimed in the petition in view of the memorandum of the Govt. No. 46/91/1/(3) dated 29-1-79. 6. The respondents have filed an application for limitation. The contention of the respondents is that the applicant has filed this petition in view of Family Planning Operation of his wife which took place in the year 1987. The respondents have also contended that the wife of the applicant is not a Govt. servant, so the application is time barred since every year there is a cause of action and every claim must be within limitation. The respondents have repeatedly contended that the present petition of the applicant is barred by limitation. 7. The appliant has filed his written arguments. 8. I have heard both the learned counsel and perused the documents filed by both the parties. 9. The respondents have repeatedly contended that the present petition of the applicant is barred by limitation. 7. The appliant has filed his written arguments. 8. I have heard both the learned counsel and perused the documents filed by both the parties. 9. First of all, the point of limitation is being considered. 10. It is an undkeputed fact that the applicant is claiming the increments from 19-3-92 and 1996. It is an undisputed fact that the applicant has filed this petition on 8-12-99. The applicant has contended that he has filed his representation for the relief which is Annexure A-3. Annexure A-3 has been filed by the applicant on 5-1-99, but from perusal of Annexure A-3, it is clear that previously also the applicant has filed several applications/representation's, for his increments, so it is clear that the applicant cannot claim the period of limitation on the basis of Annexure"A-3 which is dated 5-1-99. (Please see Administrator of Union Territory of Daman & Diu Vs. R.D. Valand; 1996 SCC (L&S) 205). It is undisputed that the petition of the applicant is belated but it is also to be seen that the applicant has claimed the relief of increments in his pay, so it is also an admitted position that a fresh cause of action arise to the applicant when he is paid his salary on the basis of wrong fixation, so I am of the opinion that the petition of the applicant is not time barred i.e. not bared by law of limitation. (Please see M.R. Gupta Vs. Union of India and others; 1995 SCC (L&S) 1273). 11. The facts of the case of the applicant is similar and identical to the facts of the case reported as J.S. Tomas Vs. State of M.P. & Others; 1993 MPLSR 146 and Virendra Kumar Patidar Vs. State of M.P. & Others; 1997 MPLSR 757. It is an undisputed fact that the wife of the applicant was operated for Family Planning and the applicant was granted two advance increments in view of the circular of the Govt. from 18-7-87, the applicant was not paid two advance increments after 28-3-92 when his pay was re-fixed is also an undisputed fact. The contention of the respondents is that since the wife of the applicant was operated on 18-7-87 much before 28-3-92 when his pay was fixed in the scale of Rs. from 18-7-87, the applicant was not paid two advance increments after 28-3-92 when his pay was re-fixed is also an undisputed fact. The contention of the respondents is that since the wife of the applicant was operated on 18-7-87 much before 28-3-92 when his pay was fixed in the scale of Rs. 2000-60-2600-75-2900 after completing 12 years of service, two advance increments due to Family Planning Operation were not sanctioned in favour of the applicant, so it is proved that the applicant is deprived of two advance increments from 28-3-92. The respondents could not show any rules, instructions or Govt. order which prohibits the benefit of increments being given on revision of pay scale of the applicant, the withdrawal of the increments thereafter is without any just cause and against the rules and the instructions of the Govt. hence, I am of the opinion that the applicant is entitled for the two advances increments in his new pay scale also. 12. It is also pertinent to note that since the case of the applicant appears to be squarely covered by the decisions given by benches of M.P.S.A.T. cited above, the applicant is also to be treated similarly as the applicants of O.A. No. 286/92 i.e. 1.S. Tomar (J.S. Tomar Vs. State of M.P. & Ors. 1993 MPLSR 146) and O.A. No. 155/94 i.e. Virendra Kumar Patidar (Virendra Kumar Patidar Vs. State of M.P. & Ors. 1997 MPLSR 757). 13. The applicant has filed this petition at a belated stage, so in view of the judgment of Hon'ble the Supreme Court - M.R. Gupta Vs. Union of India & Others, supra, the applicant is entitled to be paid two increments of his salary from the date of the presentation of this application i.e. 8-12-99. Hon'ble the Supreme Court has held in the above mentioned case that So long as the applicant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the applicant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. It is no doubt true that if the applicant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant’s claim if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified." 14. It is directed that the pay of the applicant be refixed by the respondents after adding two advance increments in the newly fixed pay scale of the applicant and the applicant be paid his salary accordingly from the month of December, 1999 onwards. The benefit of two advance increments should be given to the applicant on the revision of his future pay scales. Parties to bear their own costs. Petition Allowed.