Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 111 (MP)

Biharilal Tamrakar v. State of M. P.

2007-01-25

SHANTANU KEMKAR

body2007
ORDER 1. The petitioner had filed an application under section 19 of the Administrative Tribunals Act, 1985 before the M.P. State Administrative Tribunal (for short 'the Tribunal '). On abolition of the Tribunal the said OA No. 3294/1990 reached to this Court for adjudication. 2. Shortly stated, the petitioner's case is that, pursuant to the advet1isement issued by the respondents for filling the post of Photographer in the SS Medical College, Rewa (for short Medical College, Rewa) he submitted an application on 24.10.1969 for his appointment on the said post. He was called for interview on 27.10.1969 for the said post of Photographer. After his interview he was declared successful and was appointed on the post of Photographer in Medical College, Rewa vide order dated 13.2.1970 (Annexure A-2). In the said order of appointment to the post of Photographer his pay scale was mentioned to be Rs. 120220+usual allowances. 3. According to the petitioner as he was unaware that the pay scale of the Photographer at the relevant time was Rs. 190-300 and not Rs. 120-220 he did not protest. However, having come to know that he is being fixed on a lower pay scale, on 11.7.1980 vide Annexure A-3 he made a request to the first respondent Secretary, Department of Public Health and Family Welfare seeking the pay scale fixed for the post of photographer on which he was appointed and on which he was discharging his duties. He repeated his request for grant of pay scale of photographer vide letters dated 15.1.1981 (Annexure A-4), 15.10.1981 (Annexure A-7) and 2.6.1983 (Annexure A-8) but no reply was given by the first respondent. 4. The petitioner stated that the third respondent Dean Medical College Rewa vide his letters dated 20.2.1981 (Annexure A-6), 22.11.1984 (Annexure A-9), 18.6.1985 (Annexure A-10), 21.6.1988 (Annexure A-11) and 30.7.1988 (Annexure A-12) strongly recommended the petitioner's case for grant of pay scale of Photographer stating therein that the petitioner has been appointed and working on the post of Photographer. It was further pointed out by the Dean Medical College Rewa though two posts of Photo Artists were sanctioned for the Medical College, Rewa but as in the Medical Colleges of Bhopal, Indore, Gwalior, Jabalpur one post of Photographer was sanctioned, the petitioner was given the appointment on the post of Photographer. It was further pointed out by the Dean Medical College Rewa though two posts of Photo Artists were sanctioned for the Medical College, Rewa but as in the Medical Colleges of Bhopal, Indore, Gwalior, Jabalpur one post of Photographer was sanctioned, the petitioner was given the appointment on the post of Photographer. It was also stated in the aforesaid letters sent to the first and second respondents from time to time by the Dean Medical College, Rewa that the petitioner is performing the work and duties of Photographer but is being paid the lower salary of Photo Artist. The third respondent Dean in his aforesaid letters strongly recommended that the petitioner's post be upgraded as Photographer and he be paid difference of the salary. It was also made clear by the third respondent that since last 20 years the petitioner is doing the work of Photographer and there is no avenue of promotion from the post of Photographer, in the circumstances he should be given the benefit of atleast the post of Photographer having regard to the fact that he was appointed on the post of Photographer and performing the duties of Photographer. 5. The petitioner contends that the respondents No. 1 and 2 did not pay any heed to the petitioner's prayer and the aforesaid letters sent by the third respondent from time to time. In the circumstances the petitioner had no option but to file original application before the Tribunal seeking payment of salary from the date of his appointment on the post of Photographer which is being given to Photographers working in medical colleges at Bhopal, Indore, Gwalior and Jabalpur. 6. The respondents filed return and stated that the actual post sanctioned vide Annexure R-1 dated 10.9.1964 for Medical College Rewa was the post of Photo Artist and not the post of Photographer. Due to inadvertence, the advertisement was issued for filling up the post of Photographer and by mistake the petitioner has been given appointment of the post of Photographer in place of Photo Artist. They contend that the petitioner having accepted the post of Photographer in the pay scale of 120-220 cannot make any grievance in regard to the pay scale. According to them the petitioner kept quite for more than 10 years cannot claim the pay scale of non-existent post. 7. They contend that the petitioner having accepted the post of Photographer in the pay scale of 120-220 cannot make any grievance in regard to the pay scale. According to them the petitioner kept quite for more than 10 years cannot claim the pay scale of non-existent post. 7. The petitioner filed rejoinder stating that he was appointed as Photographer and performing the duties of Photographer as being performed by the Photographers appointed at Medical Colleges Bhopal, Indore, Gwalior and Jabalpur. He stated that his case was recommended from time to time by the third respondent and now for the first time after 20 years in the return the respondents have taken the stand that the petitioner's appointment to the Photographer was due to inadvertence. In the circumstances he submitted that this afterthought stand taken by the respondents deserves to be rejected. 8. In the additional return the respondents simply said that the rejoinder submitted by the petitioner need not be replied to for the reasons that they are merely repetitions of the averments made in the original application which averments the respondents have clearly replied vide their return. 9. Heard learned counsel for the parties and perused the documents filed by the parties. 10. It is clear from the averments made by the parties and the documents filed by them that an advertisement was issued by the respondents calling applications for filling up the post of Photographer, pursuant to which the petitioner applied for the post of Photographer. He was called for interview vide call letter (Annexure A-1) for the post of Photographer. On his selection he was issued an order of appointment (Annexure A-2) for the post of Photographer. However, in the said appointment order the pay scale of the petitioner was mentioned to be Rs. 120-220. The reply of the respondents to this is that due to inadvertence instead of Photo Artist the post of Photographer was advertised and the petitioner was given appointment on the post of Photographer. It also appears that the petitioner's representations to grant pay scale on the basis of his appointment order and the duties which he was performing were strongly recommended by the third respondent, Dean of the Medical College Rewa. It also appears that the petitioner's representations to grant pay scale on the basis of his appointment order and the duties which he was performing were strongly recommended by the third respondent, Dean of the Medical College Rewa. The Dean Medical College, Rewa requested to the State Government to grant the pay scale of Photographer to the petitioner on the ground that he is discharging the work of Photographer since he was appointed. The Dean also requested to the State Government that the post of Photo Artist of which pay scale is being paid to the petitioner be upgraded as has been done in other Colleges of the State of M.P. However, neither the petitioner's representations nor the letters of recommendations of the Dean Medical College were replied by the State Government. Thus, inspite of all these correspondence, the State Government neither denied the petitioner's claim nor had taken any step to issue a show cause notice to the petitioner to correct the nomenclature of his post from Photographer to Photo Artist. It is for the first time in the return they have taken the stand that the post of Photo Artist was sanctioned but inadvertently the petitioner was appointed on the post of Photographer. This belated stand taken by the respondents for the first time in return to save its skin and to deny the petitioner the pay scale of the post of Photographer for which he applied and on which was appointed cannot be accepted. It is also not the case of the respondents that they never received any letters sent by the petitioner and the third respondent. It is also not their case that the petitioner is not qualified for his appointment to the post of Photographer. 11. In this view of the matter the respondents contention that the petitioner having accepted the lower pay scale cannot claim the pay scale of the post of Photographer is liable to be rejected. The petitioner having appointed and performed the duties of Photographer cannot be denied the pay scale attached to the said post. 12. Accordingly, the petition deserves to be and is allowed. the respondents are directed to treat the petitioner to be appointed on the post of Photographer as per his appointment order and pay him the pay scale of the post of Photographer from his date of appointment. 12. Accordingly, the petition deserves to be and is allowed. the respondents are directed to treat the petitioner to be appointed on the post of Photographer as per his appointment order and pay him the pay scale of the post of Photographer from his date of appointment. Since the petitioner submitted the representation for the first time on 11.7.1980 vide Annexure A-3, the interest on arrears payable to the petitioner shall be payable at the rate of 6% per annum w.e.f. August 1980 till payment. 13. Petition is allowed with cost of Rs. 5000/-.