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Madhya Pradesh High Court · body

2009 DIGILAW 1340 (MP)

Suresh Silawat v. State of M. P.

2009-12-02

SHANTANU KEMKAR

body2009
ORDER Shantanu Kemkar, J. 1. Petitioners were working on the post of Assistant Professor in the Department of Higher Education, Government of Madhya Pradesh. They have been promoted from the post of Assistant Professor to the post of Professor with effect from 1-1-2004 vide order dt. 8-12-2006 (Annexure P/l) in the same pay scale of Rs. 12000-18300 which they were drawing prior to their promotion. Taking into consideration that the petitioners were promoted from the post of Assistant Professor to the post of Professor in the same pay scale the respondents issued an order dt. 5-5-2008 (Annexure P/4) to extend them the benefit of Fundamental Rule 22 D. However vide order dt. 5-6-2008 (Annexure P/5) the said order has been cancelled on the ground that the order (Annexure P/4) was not in accordance with the Fundamental Rules. Aggrieved the petitioners have filed this petition. 2. The case of the petitioners is that the post of Professor on which they have been promoted carries duties and responsibilities of greater importance than the post of Assistant Professor and that they having been promoted in the same pay scale for which they were working prior to their promotion are entitled to get the benefit of F.R. 22 D as held by a Division Bench of this Court Bench at Indore in the case of State of M. P. vs. Dayaram Patidar, W. P. (s) No. 1104 of 2001 decided on 4-10-2002. It is further case of the petitioner that in view of F. R. 22 D, the circular dt. 9-4-2007 (Annexure P/3) and the government order Annexure P/6 the action of the respondents in not extending the benefit of F. R. 22 D to the petitioners is illegal and is liable to be quashed. 3. The respondents have filed reply and have stated that vide order dt. 8-12-2006 (Annexure P/l) the petitioners have not been promoted against any of the 915 substantive posts of Professors as sanctioned under M. P. Educational Services (Collegiate Branch) Recruitment Rules, 1990 (for short the Rules). According to the respondents all the 915 posts of Professors are required to be filled up 100% by direct recruitment by selection and in the circumstances for want of their direct recruitment by selection it cannot be said that the petitioners have been promoted to the post of Professor. According to the respondents all the 915 posts of Professors are required to be filled up 100% by direct recruitment by selection and in the circumstances for want of their direct recruitment by selection it cannot be said that the petitioners have been promoted to the post of Professor. It has also been stated that in view of Schedule II of the Rules the petitioners are legally and technically holding the post of Assistant Professor in the selection grade pay scale of 12000-18300 and in the same pay scale they are designated and made deemed Professor and not substantive Professor and hence they are not entitled for the benefit of Rule 22 D of M. P. Fundamental Rules. 4. Heard learned counsel for the parties. 5. In order to appreciate the controversy involved in this petition it is appropriate to extract the Fundamental Rule 22 D for ready reference. F. R. 22-D. (1) Notwithstanding anything contained in these rules, where a Government servant holding a post in a substantive, temporary or officiating capacity, is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post, shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued: Provided that the provisions of the rule, shall not apply where a Government servant holding a Class~I post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to a higher post which is also a Class-I post. 6. The question about the grant of benefit of F. R. 22 D was considered by a Division Bench of this Court in the case of State of M. P. vs. Dayaram Patidar (supra). In paragraphs 13 and 14 the Division Bench has observed thus : Para 13 : "There is yet another factor against the petitioners. Identical order sought to be impugned in this petition, was, challenged by the petitioners in W.P. No. 244 of 2002, State of M. P. and others vs. Kadna. In paragraphs 13 and 14 the Division Bench has observed thus : Para 13 : "There is yet another factor against the petitioners. Identical order sought to be impugned in this petition, was, challenged by the petitioners in W.P. No. 244 of 2002, State of M. P. and others vs. Kadna. The same came to be decided by a Bench of this Court on 13-2-2002 and the order of Tribunal was upheld, whereby, benefit of FR.22- with regard to pay fixation was directed to be given from the date of his joining on the promoted post and not from the date of financial sanction accorded by Finance Department of State. Thus, identical order of Tribunal having attained finality and approval by having seal of this Court, identical order cannot be permitted to be challenged and even if challenged, cannot be set aside by this Court. This is yet another ground for dismissal of this petition. Para 14 : On merits also this petition must fail. An employee on promotion from a lower post to higher post is entitled to get his pay fixed in the pay scale of higher post as per F.R. 22-D. This rule gives him weightage of a few increments. It is true, that the respondent-employee was already getting the pay scale of his new post even before promotion. But that would not disentitle him to the benefit under FR. 22-D. This rule speaks of promotion from lower post to higher post not from one scale to another. Scale of pay is irrelevant in the matter of application of FR. 22-D which confers some financial benefit to the employee on promotion, which so even where the respondent was getting same salary while working on lower post, the benefit of FR. 22-D to which he is otherwise entitled on promotion, cannot be denied to him. 7. On going through the provisions contained in F.R.22-D and on a close scrutiny of the order dt. 8-12-2006 (Annexure P/l) the Rules and the order passed by a Division Bench of this Court at Principal seat Jabalpur in the case of Dr. 22-D to which he is otherwise entitled on promotion, cannot be denied to him. 7. On going through the provisions contained in F.R.22-D and on a close scrutiny of the order dt. 8-12-2006 (Annexure P/l) the Rules and the order passed by a Division Bench of this Court at Principal seat Jabalpur in the case of Dr. Smt. Nisha Tiwari and others vs. State of M. P., Writ Petition (s) No. 11324/2003 decided on 7-9-2005 (Annexure R/4) I am of the view that the petitioners are entitled for grant of benefit of F.R. 22-D. It is not in dispute that the petitioners were working on the post of Assistant Professor. Their cases for promotion in terms of Clause 7 of Schedule II of the Rules have been considered by the Departmental Promotion Committee and on such promotion being made the order Annexure P/l was issued promoting them on the post of Professor on the same pay scale as they were getting for the post of Assistant Professor prior to their promotion. Merely because in the schedule no definite number of such promotional posts of Professor have been given it cannot be said that the petitioners have not been promoted to the extent of atleast giving them the benefit of F.R. 22 D. The order dt. 7-9-2005 passed in the case of Dr. Smt. Nisha Tiwari (supra) nowhere dealt with the question involved in this petition and the circumstances it cannot come in the way of the petitioners for extending them the benefit of F.R. 22D. 8. The petitioners have been promoted vide order dt. 8-12-2006 from the substantive post of Assistant Professor to the post of Professor. Even assuming that they have not been promoted against the available substantive posts but certainly the respondents cannot be allowed to say that it is not even a temporary or officiating promotion order to a higher post carrying duties and responsibilities of greater importance than the post held by them as required for giving benefit of FR. 22 D. 9. In the circumstances on the basis of plain reading of F.R. 22-D in my considered view the petitioners are entitled for grant of benefit of the same. Accordingly the impugned order dt. 5-6-2008 (Annexure P/5) cancelling the order dt. 5-5-2008 (Annexure P/4) by which the benefit was extended in favour of the petitioners is quashed. 22 D. 9. In the circumstances on the basis of plain reading of F.R. 22-D in my considered view the petitioners are entitled for grant of benefit of the same. Accordingly the impugned order dt. 5-6-2008 (Annexure P/5) cancelling the order dt. 5-5-2008 (Annexure P/4) by which the benefit was extended in favour of the petitioners is quashed. Respondents are directed to extend the benefit of F.R. 22-D to the petitioners by fixing their pay accordingly. The arrears be calculated and be paid to the petitioners within a period of four months failing which the petitioners shall be entitled for interest on arrears at the rate of 6% per annum from the date of entitlement till payment.