Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 175 (MP)

State of M. P. v. Virendra Kumar Saxena

2006-01-31

A.P.SHRIVASTAVA, S.S.JHA

body2006
JUDGMENT Jha, J. -- 1. Respondent Virendra Kumar Saxena was appointed on the post of lower division clerk in a regular pay scale vide order dated 28th July, 1979. However, he could not complete his probation within a period of two years, therefore, period of probation was extended by one year. He completed his probation in the extended period and he was declared as permanent on the post of lower division clerk with effect from 1.1.1994 vide order dated 31.1.1994. After the respondent was declared permanent on the post increments were paid to him. Respondent submitted that he is also entitled for increments on completion of one year's service after he joined in August, 1979. Claim of the respondent was opposed by the petitioner on two grounds firstly, that the claim of the respondent is time barred and secondly since the respondent has not completed the probation within a period of two years therefore he will be entitled for increments after successful completion of probation. Tribunal held that claim is not barred by limitation. Denial of increment has resulted into payment of less salary and the respondent has recurring cause of action and so long as the respondent gets lesser salary he gets fresh cause of action every month. As regards grant of increments. Tribunal relied upon its judgment in the case of Dr. P.L. Malik v. State of M.P. and others (TA No. 1543/88, decided on 30.7.1990) and held that increments could not be denied even for ad hoc employees therefore, the respondent is entitled for increments during the period of probation. 2. Counsel for the petitioners submitted that claim of the respondent before the Tribunal was not maintainable under section 21 of Administrative Tribunals Act having been filed beyond the period of one year from the date of actual cause of action accrued in the year 1980. Counsel for the petitioners further submitted that the respondent has failed to complete the probation within a period of two years, therefore, as per Rule 8 (7) of the M.P. Civil Services (General Conditions of Services) Rules, 1961, (hereinafter, referred to as the "Rules") his services shall be counted from the date of his confirmation. Counsel for the petitioners further submitted that the respondent has failed to complete the probation within a period of two years, therefore, as per Rule 8 (7) of the M.P. Civil Services (General Conditions of Services) Rules, 1961, (hereinafter, referred to as the "Rules") his services shall be counted from the date of his confirmation. Respondent was regularised on successful completion of probation with effect from 29.7.1982, therefore, he will be entitled for increments from July, 1983 onwards and previous period shall be treated to be temporary service and temporary employees arc not entitled for increments. 3. On the other hand, counsel for respondent submitted that under Fundamental Rule 26 and various circulars issued from time to time respondent is entitled for increments from the date of his appointment on probation. He submitted that his original application before the Tribunal was not barred by limitation. In fact increments were calculated in the year 1994 after he was confirmed on the post. He submitted a representation for settlement of his salary which was considered by the petitioner. He submitted that on getting lesser salary every month the respondent has perpetual cause of action and he is getting fresh cause of action every month on drawing salary. Therefore, application of the respondent is well within limitation. 4. As regards fixation of pay and grant of increments is concerned, it has been settled by the apex Court that payment of salary and improper fixation of salary is perpetual cause of action and an employee can ask for settlement of his salary at any time so long as he is getting salary from the State. Therefore it is held that the application tiled before the Tribunal was well within limitation. 5. Next question arises for consideration in the case is whether the respondent is entitled for increments during the period of probation or whether he will be entitled for increments after successful completion of probation and whether Rule 8 of the Rules will be applicable in the present case. 6. 5. Next question arises for consideration in the case is whether the respondent is entitled for increments during the period of probation or whether he will be entitled for increments after successful completion of probation and whether Rule 8 of the Rules will be applicable in the present case. 6. It may be mentioned that rule 8 of the Rules pertains to consideration of seniority of each employee under rule 8(7) a probationer, who has neither been confirmed nor a certificate issued in his favour under sub-rule (6), nor discharged from service under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. Thus, an employee who has no successfully completed the probation will be governed by M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960. But on his successfully completion of probation in extended period he will be deemed to be appointed against a regular post. Under rule 8 (7) though he will be a probationer for the purpose of seniority and his seniority will be counted from the date of his successful completion of probation if no completed within two years of probation, but this Rule will not apply to grant of increments. 7. FR 26 relates to grant of increment which is reproduced below: Service which counts for increments.-- The following provisions prescribe the conditions on which service counts for increments in a time-scale: (a) All duty in a post on a time scale counts for increments in that time-scale: Provided that, for the purpose of arriving at the date of next increment in that time scale the total of all such periods as do not count for increment in that time scale, shall be added to normal date of increment. Thus, it provides that all duty in a time scale counts for increments in that time-scale. It further provides that for the purpose of arriving at the date of next increment in that time scale the total of all such periods as do not count for increment in that time scale shall be added to normal date of increment. Thus, it provides that all duty in a time scale counts for increments in that time-scale. It further provides that for the purpose of arriving at the date of next increment in that time scale the total of all such periods as do not count for increment in that time scale shall be added to normal date of increment. Thus, the language is clear that when a person is appointed and he is on duty in a post, he will be entitled for increments and such periods which do not count for increment in that time scale and shall also be added to normal date of increment. 8. Clarification was issued by M.P. Finance Department on 14th May, 1968 that the service rendered by a Government servant who holds substantively a permanent post in a cadre and is merely appointed on 'probation' to another post counts for increment in the post in which the service is actually rendered, that is, the post which he holds on probation. In such a case, therefore, it is permissible for the Government servant t draw an increment even before the end of his probation. A.G. 1.2 further provides that if a probationer is confirmed at the end of a period of probation exceeding twelve months, he is entitled to claim retrospectively the increment which but for his probation he would have received in the ordinary course. This circular itself is sufficient to clarify that an employee continuing on probation exceeding twelve months after the end of probation is also entitled to claim retrospectively the increment from the date of his appointment on the post of probation. 9. Language of FR 26 is clear and specific and the circulars issued from time to time clarify that a probationer is entitled for increments from the date of his appointment. Therefore, the Tribunal has not committed any error in directing payment of increments to the respondent Virendra Kumar Saxena from the year 1980 onwards. Directions given by the Tribunal do not call for any interference. Petitioners State is, therefore, directed to calculate the increments payable to respondent Virendra Kumar Saxena from the year 1980 and fix the pay of the respondent. Arrears of salary be paid to him within a period of six months from the date of communication of this order. 10. In the result, petition is dismissed with costs of Rs. 1,000/- (Rs. Petitioners State is, therefore, directed to calculate the increments payable to respondent Virendra Kumar Saxena from the year 1980 and fix the pay of the respondent. Arrears of salary be paid to him within a period of six months from the date of communication of this order. 10. In the result, petition is dismissed with costs of Rs. 1,000/- (Rs. one thousand) payable to respondent Virendra Kumar Saxena.