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Madhya Pradesh High Court · body

2009 DIGILAW 96 (MP)

STATE OF M P v. RAGHVENDRA SOHGAURA

2009-01-21

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) REGARD being had to the homogeneous character of the controversy in issue, this batch of writ appeals was heard analogously and is disposed of by a singular order. For the sake of clarity and convenience, the facts in Writ Appeal No. 1098/2006 which arises out of W. P. (S) No. 5843/04 are adumbrated herein. ( 2. ) SHORN of unnecessary details, the facts which are imperative to be exposited for adjudication of the lis are that the respondents (original petitioners) were appointed as Shiksha Karmis under the M. P. Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 (hereinafter referred to as the 1997 Rules) in various grades, i. e. , Grades- I, II and III. The appointments were made on probation basis. The pay-scale for the said posts are prescribed in Schedule 1 to the Rules. The services of the respondents were confirmed on completion of three years probation and they were extended the benefit of increments on completion of one year of the date of initial appointment by order dated 4. 2. 2003. When the respondents were enjoying such benefit the Commissioner, Public Instructions issued an order dated 8. 7. 2004 directing that the benefit of increments which were given to shiksha Karmis on completion of one year of probation period after confirmation of their services had been extended erroneously and the same was to be recovered and the amount was to be adjusted out of the salary to be paid. Being aggrieved by the aforesaid action of the said authority, the respondents- shiksha Karmis filed writ petitions invoking the extraordinary and equitable jurisdiction of this Court under Article 226 of the constitution of India for issue of a writ of certiorari for quashment of the same and to command the respondents to continue the benefit. ( 3. ) IT was contended before the learned single Judge that once the period of probation was completed, they were entitled to increments on completion of one year of probation from the date of their initial appointment and the same was rightly paid to them. Reliance was placed on various circulars and Fundamental Rule 26 to build the edifice to sustain the stand that the action of the State was sensitively susceptible. ( 4. Reliance was placed on various circulars and Fundamental Rule 26 to build the edifice to sustain the stand that the action of the State was sensitively susceptible. ( 4. ) BEFORE the learned single Judge it was also urged that the release of increments was in accordance with the circulars dated 9. 12,1974, 30. 5. 1977 and 6. 6. 1979 and clarificatory note given by the Accountant General. It was also argued that Rule 7 of the 1997 Rules does not create any impediment for grant of increments to the employees who are confirmed. The decision rendered in p. R. Malik v. State of M. P. and Others, 1991 MPHT 15 was pressed into service to highlight that the principles laid down therein would apply to the petitioners inasmuch as when ad hoc employees have to be given the benefit of the increments during ad hoc officiation, they cannot be dealt with differently. ( 5. ) THE stand and stance put forth by the petitioners was resisted by the respondent -State contending, inter alia, that under Rule 7 of the 4997 Rules, shiksha Karmis were appointed on probation for a period of three years which was extendable for another two years and during the said period they were to be paid fixed pay, i. e. , the minimum of the pay scale with dearness allowance and only on successful completion of probation, regular pay-scale is payable. It is worth noting that it was put forth that the appointment was equivalent to apprentice. A distinction was made between the civil servants and the Shiksha Karmis and justification was given for recovery of the amount that was erroneously paid. ( 6. ) THE learned single Judge, as is manifest from the order, referred to Rule 7 of the 1997 Rules, Rule 25 of the M. P. Panchayat Service (Recruitment and General conditions of Services) Rules, 1999 (in short the 1999 Rules), MP. Civil Services (General Conditions of Services) Rules, 1961 (for brevity the 1961 Rules), the circular issued by the State Government on 30. 5. 1977, clarification to the said circulars issued by the General Administration Department, Fundamental Rule 26, clarification issued by the Accountant General, circular dated 06. 6. Civil Services (General Conditions of Services) Rules, 1961 (for brevity the 1961 Rules), the circular issued by the State Government on 30. 5. 1977, clarification to the said circulars issued by the General Administration Department, Fundamental Rule 26, clarification issued by the Accountant General, circular dated 06. 6. 1979 issued by the General Administration Department and referred to the decisions rendered in Sahib Mam v. State of Haryana and Others, 1995 SCC (Lands) 248, State of karnataka and Others v. G. Halappa and Others, (2002) 4 SCC 662 , State of Rajasthan v. Gopi Kishan Sen, AIR 1992 SC 1754 , The State of Mysore and another v. P. Narasinga Rao, AIR 1968 SC 349 and V. Miakendeya and Others v. State of Andhra Pradesh and Others, AIR 1989 SC 1308 and came to hold that shiksha Karmis are entitled to release of increments on confirmation of their services retrospectively when the increment fell due. Being of this view, the learned single Judge allowed the writ petitions and quashed the order passed by the Commissioner of Public Instructions. ( 7. ) QUESTIONING the sustainability of the order passed by the learned single Judge, mr. R. N. Singh, learned Advocate General for the State, has raised the following contentions: (a) The learned single Judge has fallen into error in expressing the opinion that there is no embargo in Rule 7 of the 1997 Rules to give the benefit of increments on confirmation of service. (b) The interpretation placed by the learned single Judge on Rule 7 especially on the terms minimum the pay-scale is erroneous as the said words are to be in the context they are used, i. e. , fixed pay. (c) The reliance on Rule 25 of the 1999 Rules is unacceptable inasmuch as the writ petitioners were appointed as shiksha Karmis under the 1997 Rules meant exclusively for the said posts and, therefore, the said Rules are to prevail. (d) The reliance on the 1961 Rules, the circulars of the state Government and Fundamental Rules and the clarificatory letters issued by the Accountant General could not have been placed reliance upon as they basically and fundamentally have applicability to the Government employees and by no stretch of imagination shiksha Karmis could be equated with the Government servants. (d) The reliance on the 1961 Rules, the circulars of the state Government and Fundamental Rules and the clarificatory letters issued by the Accountant General could not have been placed reliance upon as they basically and fundamentally have applicability to the Government employees and by no stretch of imagination shiksha Karmis could be equated with the Government servants. (e) The direction issued by the learned single Judge quashing the order of recovery is untenable since the increment was released in violation of the rules in an erroneous manner and further the writ petitioners are in the initial period of their career. ( 8. ) MR, Rajendra Tiwari, learned senior counsel appearing on behalf of the respondents combatting the submissions of the learned Advocate General, canvassed the following proponements: (i) The interpretation placed by the learned single Judge on Rule 7 of the 1997 Rules is not eroneous as the Rule has to be liberally interpreted regard being had to the fact that it pertains to the appointment of shiksha Karmis who impart education to build the nation. (ii) Rule 7 of the 1997 Rules and Rule 25 of the 1999 Rules are to be read conjointly as that would achieve the real purpose and that having been done by the leaned single Judge, the order cannot be found fault with. (iii) The inspiration drawn from various circulars and the fundamental Rule 26 by the learned single Judge should not be treated as faulty inasmuch as the opinion expressed by him in shiksha Karmis who have been appointed by the Rules in service of Panchayats are entitled to similar benefits which are granted to other employees of other local bodies and they cannot be treated less favourably as their status is better than ad hoc employees who have been given the increments during the period of ad hoc officiation. (iv) This Court should apply the principle of purposive construction as the literal interpretation would be in the realm of semantic and narrow concept of lexicon construction. ( 9. ) TO appreciate the rivalised submissions raised at the Bar, it is apposite to refer to the scheme of the 1997 Rules. shiksha karmi1 has been defined in Rule 2 (h) to mean a person appointed by Zila Panchayat or Janpad Panchayat for teaching in the schools under their control. ( 9. ) TO appreciate the rivalised submissions raised at the Bar, it is apposite to refer to the scheme of the 1997 Rules. shiksha karmi1 has been defined in Rule 2 (h) to mean a person appointed by Zila Panchayat or Janpad Panchayat for teaching in the schools under their control. Rule 4 of the said Rules deals with the classification and scale of pay. It is apt to reproduce the said Rule: "4. Classification and Scale of Pay.-The classification of Shiksha Karmis and their scales of pay shall be as given in the Schedule I. Number of the posts shall not be increased except with the prior approval of the Government or an Officer duly authorised by the Government. " ( 10. ) RULE 5 provides for the methods of selection and recruitment. Rule 7, which forms the fulcrum of the present lis provides for probation, is reproduced below: "7. Probation.- Every person directly recruited to the post of Shiksha Karmi shall be appointed initially on probation of three years, extendable upto five years for a particular school so that he serves in that school for full probation period. The performance will be assessed by the appointing authority at the end of each year. After three years, the Shiksha Karmi may be appointed in the regular pay scale of the Panchayat on the basis of bis work, conduct and performance. In case the performance is not found, satisfactory, he may be allowed to continue on probation for another one to two years to improve after which his performance will be assessed again at the end of extended period and if not found satisfactory, his service shall be terminated. But in no case the probationary period shall be extended beyond the maximum period of five years. Shiksha Karmi will be paid fixed pay equivalent to minimum of the pay scale with admissible dearness allowance during the probation period. " ( 11. ) RULE 8 deals with promotion. Rule 11 which provides for the general conditions of service,. is as follows:- "11. General Conditions of Service.- Conditions of service other than mentioned above, shall be the same as applicable to other employees of the Janpad Panchayat or Zila Panchayat, as the case may be. " ( 12. " ( 11. ) RULE 8 deals with promotion. Rule 11 which provides for the general conditions of service,. is as follows:- "11. General Conditions of Service.- Conditions of service other than mentioned above, shall be the same as applicable to other employees of the Janpad Panchayat or Zila Panchayat, as the case may be. " ( 12. ) AS our attention has been invited to the 1999 Rules, it is also thought necessary to have a survey of the said Rules. Rule 2 which deals with application reads as under: "2. Application.- Unless otherwise provided in the madhya Pradesh Panchayat Raj Adhiniyam, 1992 (No. of 1994)or any other rules made thereunder, these rules shall apply to all posts in Zila Panchayat and Janpad Panchayat but shall not apply to the following categories, viz: - (a) Posts on a contingency paid establishment, or work charged establishment, or daily wage establishment; (b) Posts to which appointments are made on part time basis; and (c) Posts to which appointments are made on contract basis. " ( 13. ) RULE 3 (b) defines appointing authority in respect of service meaning to the authority shown as appointing authority for the post concerned in the Schedule v. Rule 2 (e) defines panchayat Service to mean the service of Zila Panchayat or Janpad Panchayat, as the case may be, under sub-section (1) of Section 70 of the Act. Rule 4 deals with the constitution of service. The same being relevant is reproduced below : "4. Constitution of service.- Service shall consist of the following persons, namely,- (1) Persons, who, at the commencement of these rules, are holding substantively the post specified in Schedule I; (2) Persons, recruited to the service before the commencement of these rules; and (3) Persons, recruited to the service in accordance with the provisions of these rules. " ( 14. ) RULE 5 deals with the staffing pattern in the Panchayat service. Rule 6 which deals with the classification and scale of pay, etc. , provides that the same shall be in accordance with the provisions contained in Schedule I. Rule 7 deals with the method of recruitment. Rule 9 prescribes the conditions of eligibility for direct recruitment and Rule 10 deals with the disqualification for appointment to panchayat service. Rule 25 on which the learned single Judge has placed reliance pertains to probation and confirmation. Rule 9 prescribes the conditions of eligibility for direct recruitment and Rule 10 deals with the disqualification for appointment to panchayat service. Rule 25 on which the learned single Judge has placed reliance pertains to probation and confirmation. The said Rule reads as under:- "25. Probation and Confirmation.- (a) All appointments to the Panchayat Service or post whether by direct recruitment or by promotion shall be made on probation. The period of probation shall be of two years: provided that the appointing authority may for sufficient reason to be recorded extend the period of probation for a period not exceeding one year. (b) During the period of probation of employees, a six monthly confidential report shall be written and it shall include comments on his work, efficiency and devotion to duty. (c) On tile successful completion of the probation, the probationer shall be confirmed in the service or post to which he has been appointed. (d) No person shall be confirmed in a post in the Panchayat service unless he has completed the period of his probation satisfactorily and has passed the departmental examination, if any, and has successfully undergone training, if any, laid down by the state Government or by the Panchayat for the holder of such post. Explanation.- Confirmation under this sub-rule may be made with effect from the date of continuous officiation of the person after completion of the period of probation if any in that post of the date from which the permanent post is substantively vacant, whichever is later. (e) If the probationer does not complete his probation satisfactorily, the direct recruited candidate shall be discharged from the Panchayat service without paying any compensation and the candidate appointed by promotion shall be reverted to the post substantively held by him before the promotion. " ( 15. ) AS is luminescent from the order of the learned Single Judge, he has placed reliance on Rule 25 of the 1999 Rules. As held by him the explanation of Rule 25 (d) of the 1999 Rules makes it clear that confirmation under Sub-Rule may be made with effect from the date of continuance of officiation of the person or the date from which the permanent post is substantively vacant, whichever is later. It is clear as crystal that the 1997 Rules exclusively deals with the appointment of shiksha Karmis1. It is clear as crystal that the 1997 Rules exclusively deals with the appointment of shiksha Karmis1. The 1999 Rules lays down recruitment and general conditions of panchayat services. When a specific set of rule has been brought into existence to govern the terms and conditions of shiksha Karmis, it is to be treated as a special rule. In view of the aforesaid, the maxim generalia specialibus non derogant (general things do not derogate from special things) gets attracted. In a situation where two statutes or rules are conflicting or appear to be conflicting, the duty of the Court is to find out which of the two apparent conflicting provisions is more general and which is more specific. Thus, in case of inconsistency between the provisions of two enactments both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. ( 16. ) IN Craies on Statute Law, 1963 Edn. , pp. 376r77, it has been stated thus:- "the general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is special and the subsequent enactment is general, the rule of law being, as stated by Lord Selbourne in Sewards v. Vera Cruz 1984 10 AC 59, 68, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. There is a well known rule which has application to this case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted, and the cases on the subject will be found collected in the third edition of Maxwell is generalisa specialibus non derogant - i. e. general provisions will not abrogate special provisions. That this is the law cannot be doubted, and the cases on the subject will be found collected in the third edition of Maxwell is generalisa specialibus non derogant - i. e. general provisions will not abrogate special provisions. When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms. " ( 17. ) IN Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council, 1995 2 SCC 479 , it has been held that the Motor Vehicles act, 1988 can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. The Consumer Protection Act, 1986 being a law dealing with the question of extending protection to consumers in general, could, therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles found in chapter XII of the 1988 Act. In the said case, it has been held that the 1988 Act creates a forum before which the claim can be laid if it arises out of an accident. That being a special law would prevail over the relevant general law such as the 1986 Act. ( 18. ) IN Allahabad Bank v. Canara Bank, 2000 4 SCC 406 , it has been held thus:- "there can be a situation in law where the same statute is treated as a special statute vis-a-vis one legislation and again as a general statute vis-a-vis yet another legislation. " ( 19. ) IN P. S. Sathappan v. Andhra Bank Ltd. , 2004 11 SCC 672 , it has been ruled thus:- "it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure code is a general law applicable to all courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure code is a general law applicable to all courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. " ( 20. ) IN Amrendra Pratap Singh v. Tej Bahadur Prajapati, 2004 10 SCC 65 , it has been held that a general law cannot defeat the provisions of a special law to the extent to which they are in conflict; else an effort has to be made at reconciling the two provisions by harmonious reading. ( 21. ) IN Raghunath Rai Bareja V. Punjab National Bank, 2007 2 SCC 230, the view expressed in Allahabad Bank (supra) was reiterated. ( 22. ) IN the case at head, as Rule 7 of the 1997 Rules specifically deals with the issue of probation of shiksha karmis the same has to be made full with applicable with force and on all fours and it would be an anathema to the science of construction and art of interpretation to read Rule 25 of 1999 Rules conjointly with Rule 7 of 1997 Rules. It would also destroy the basic facet of interpretation if both the rules are to be read in conjunction to have a purposive understanding of the. rules because Rale 7 operates in a separate sphere and with exclusivity pertaining to the service conditions of the shiksha karmis. Rule 25 has nothing to do with shiksha karmis. It is in general character. Thus, Rule 7 has to prevail. ( 23. ) ANOTHER aspect which really deserves to be dealt with is whether the reliance on Rule 8 of 1961 Rules, various circulars and Fundamental Rule 26 can be taken aid of. The learned Single Judge has copiously referred to the same and to the instructions of the Accountant General. On a purposive survey of the said rules, circulars and instructions, there can be no scintilla of doubt that they pertain to government employees. It is worth-noting that Mr. The learned Single Judge has copiously referred to the same and to the instructions of the Accountant General. On a purposive survey of the said rules, circulars and instructions, there can be no scintilla of doubt that they pertain to government employees. It is worth-noting that Mr. Tiwari, learned Senior Counsel, at the commencement of hearing, had raised a spacious submission that shiksha karmis are government employees but on being pointed as to on what basis they can be regarded as shiksha karmis, the learned senior counsel , realising the fallacy in the agreement abandoned the said submission and acceded that they are not government employees. Frankly speaking, the concession has been rightly given. We are disposed to think as on a scanning of the rules pertaining to shiksha karmi by no stretch of imagination, it can be held that they are government employees. In this context we may refer with profit to the decision rendered in State of Gujarat and another vs. Raman Lal Keshav Lal Soni, 1983 2 SCC 33 = AIR 1983 SC 391. In the aforesaid case the Apex Court while considering the question whether the members of Gujarat Panchayat Service are Government servants laid down various factors which would indicate the relationship of master and servant though none of them are conclusive as no single* factor can be considered to be absolutely essential. In paragraph 27 their Lordships have held as under:- "we have to first consider the question whether the members of the Gujarat Panchayat Services Are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politics nor possible to lay down any definite test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. We do not propose and indeed it is neither politics nor possible to lay down any definite test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of duties performed by the employees manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. " ( 24. ) IF the aforesaid guidelines are kept in view it would be clear as crystal that a shiksha Karmi is not appointed by the State Government, the State Government is not the disciplinary authority, the nature of duties performed by him has no nexus with the State government and the salary is not paid by the State Government. Hence, he, by no strectch of imagination, can be regarded as an employee of the State Government. ( 25. ) TESTED on the anvil of the aforesaid pronouncement of law, it is beyond any shadow of doubt that shiksha karmis are not government employees. Once they are not government employees, the question of the applicability of the 1961 Rules, fundamental rules, government circulars and the instructions of the Accountant general remotely do not have application as these exclusively apply to government servants. ( 26. ) PRESENTLY to the interpretation of Rule 7. The learned Single Judge has expressed the view that there is no embargo in Rule 7 not to give benefit of increment of confirmation of service. We have already reproduced Rule 7. It stipulates that a shiksha karmi will be paid fixed pay equivalent to minimum of the pay-scale with admissible dearness allowance during the probation period. Submission of Mr. The learned Single Judge has expressed the view that there is no embargo in Rule 7 not to give benefit of increment of confirmation of service. We have already reproduced Rule 7. It stipulates that a shiksha karmi will be paid fixed pay equivalent to minimum of the pay-scale with admissible dearness allowance during the probation period. Submission of Mr. Tiwari, learned senior counsel is that the Rule requires purposive interpretation. In this context, we may refer with profit to the decisions rendered in Gurudevdatta VKSSS Maryadit v. State of Maharashtra, 2001 4 SCC 534 , dayal Singh v. Union of India, 2003 2 SCC 593 , Swedish Match AB v. Securities and Exchange Board, India, 2004 11 SCC 64 and Compack (P)Ltd. v. CCE, 2005 8 SCC 300 wherein it has been held that unless a literal meaning placed on a document, leads to anomaly or absurdity the principle of literal interpretation should be adhered to. A court is not required to pave the path of purposive construction to interpret the section which would usher in conflict in various provisions of the enactments or the rules. It is well settled in law that a strained meaning should not be assigned to the words if the legislative purpose is clear and conveys it through the literal meaning. In the case at hand the Rule is clear, unambiguous and does convey the intention of the Rule Making Authority. The words used are "fixed pay". Instead of specifying an amount it has been stated that the same should be equivalent to minimum of the pay scale with admissible dearness allowance. The manner or the method of quantification cannot be allowed to convey that there is no fixed pay. Once the concept of fixed pay is attracted, it is a different condition altogether. The conferral of benefit of increment on confirmation with retrospective effect cannot be allowed to govern as that would defeat the root rule. ( 27. ) A Division Bench of this Court in Saroj Goswami vs. State of M. P. and others, 2006 (1) MPLJ 217 , while dealing with the concept of fixed pay and appointment on a time-scale, expressed the view as follows: "9. Before 10-3-1987, the petitioners appointment was for period of six months each. ( 27. ) A Division Bench of this Court in Saroj Goswami vs. State of M. P. and others, 2006 (1) MPLJ 217 , while dealing with the concept of fixed pay and appointment on a time-scale, expressed the view as follows: "9. Before 10-3-1987, the petitioners appointment was for period of six months each. It was on ad-hoc or stop gap service and on the basis of such service, the petitioner will not be entitled to the benefits which are given to a person who holds a substantive post. Therefore, the petitioner will not be entitled either to claim seniority or to get benefit of pay-scale attached to the post while working in an ad-hoc capacity. Reliance on FR-26 is not of any assistance. It merely provides that all duty in a post on a time scale counts for increments in that time-scale. Thus is if the appointment was to a post on time-scale, duty performed on such a post, would be counted for increments in that time-scale. Where appointment was not on a time-scale, but on fixed pay, the incumbent will neither be entitled to the benefit of seniority nor pay-scale. The fact that the fixed pay happened to be equivalent to the initial pay in a time scale does not mean that the ad-hoc service was on a time scale. The decision of the tribunal in Dr. P. L. Malik vs. State of M. P, T. A. No. 1547/88 and connected cases decided on 30-7-90 hold that ad-hoc employees are entitled to increments is, therefore, wrongly decided. The petitioner is not entitled to claim the benefit of increments for the ad-hoc service between 1983 to 1987. 10. We are fortified in our view by the decision of the supreme Court in Dhyan Singh vs. State of Haryana, JT 2000 (10) SC 436, wherein considering whether temporary service or ad-hoc service rendered in specific schemes could be counted as employment under the State the Supreme Court observed: "the continuance/engagement of the appellants under the specific scheme cannot be held to be an employment under any establishment of the government. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. But the employment under such scheme not being a part of formal cadre of the State Government, it is difficult to hold that the period for which an employee rendered service under such scheme can be counted either for the purposes of deciding their pensionary benefits or even for fixing of their salary in the scale of pay once they are regularly absorbed. " ( 28. ) IT is worth-noting that the learned Single Judge has placed reliance on the case of Dr. P. L. Malik vs. State of M. P, T. A. No. 1547/1988 decided on 30-7-90 but the Division, Bench has clearly held that the decision therein holding that ad hoc employees are not entitled to increment is, therefore, wrongly decided. The Division Bench has laid immense emphasis on the fixed pay and opined that if an appointment is made on fixed pay the incumbent will neither be entitled to the benefit of seniority nor pay-scale. ( 29. ) THE next issue which arises for consideration is whether there should be recovery of the amount in question or not. In this regard, Mr. Tiwari commended us to the decision rendered in Sahib Ram vs. State of Haryana, 1995 SCC Lands 248 wherein a upgraded pay scale was given due to wrong construction of an order by the Authority concerned without any misrepresentation by the employee it was held by their Lordships that the amount paid shall not be recovered as there was no misrepresentation by the employee. In the case at hand we have been apprised at the Bar that the some have been paid and some have not been paid. It was not a payment by any kind of misrepresentation by the shiksha karmis. It was erroneous payment on behalf of the authorities. Submission of Mr. Singh that incumbents have long years to go and hence, there should be recovery. The aforesaid submission has been put forth with the foundation that recovery would not affect them. Be that as it may, we are of the considered opinion that recovery of the amount in the obtaining factual matrix is not warranted. Submission of Mr. Singh that incumbents have long years to go and hence, there should be recovery. The aforesaid submission has been put forth with the foundation that recovery would not affect them. Be that as it may, we are of the considered opinion that recovery of the amount in the obtaining factual matrix is not warranted. Therefore, we conclude and hold that the respondents are not entitled to increments during their probation period in terms of Rule 7 of 1997 Rules and, their increments would only commence after confirmation and the benefits that have been paid by erroneous fixation of increment should not be recovered. Needless to emphasis their pay scale shall be re-fixed on the basis of aforesaid conclusion and they be paid accordingly. ( 30. ) EX consequenti, the writ appeals are allowed to the extent indicated above. The order passed by the learned Single Judge as far as it holds that the respondents were entitled to increment on completion of one year of probation is set aside and as far as the conclusion that mere could not have been recovery for erroneous payment is upheld. In the facts and circumstances of the case, there shall be no order as to costs. Appeal allowed.