Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 491 (MP)

C. K. Srivastava v. State of M. P.

2011-04-21

RAJENDRA MENON

body2011
JUDGMENT Rajendra Menon, J. 1. Petitioner is 73 years old retired employee and had filed this writ petition in the year 2007, claiming salary and promotion on the post of Physiotherapist. 2. Even though petition is pending since more than 5 years and is listed for final hearing, Respondents have not filed any reply and No. justification is given for avoiding reply. Keeping in view this factor matter is heard on the basis of material available on record. 3. Petitioner was initially appointed as Class-III Non-Gazette Services under the Department of Health, Government of M.P., he was initially working as non-medical supervisor, while so working finding the Petitioner to be suitable and efficient, he was sent to undergo 10 months training as a physiotherapist and accordingly an order Annexure P-2 was passed on 2.9.1971 directing the Petitioner to undergo the aforesaid training. The Petitioner undertook the training in the Central Leprosy Teaching and Research Institute Tamil Nadu between 9.10.1972 to 8.8.1973 and after completing the training/course, certificate Annexure P-3 was issued. On returning back from the course to which the Petitioner was sent by the relieving order Annexure P-4, an order was passed by the competent authority of the State Government vide Annexure A-5 on 9.11.1982 posting the Petitioner as Physiotherapist in the Leprosy Training Centre at Sehore. According to Petitioner right from the year 1982 Petitioner started discharging duties of physiotherapist in the centre in question and continued to work so till his retirement in the year 1998. While Petitioner was in service he submitted various representations seeking his regular promotion to the post of Physiotherapist and salary on the said post. However, when this was not granted to him he filed an application under Section of the Administrative Tribunal Act before the M.P. State Administrative Tribunal, Bhopal being O.A. No. 105/98 and after winding up of the Tribunal the matter was transferred to this Court and was registered as W.P. No. 23870/2003 and vide order dated 20.2.2004 Annexure P-11 a Bench of this Court directed the Respondents to decide the claim of Petitioner. Accordingly the claim of Petitioner having being rejected vide Annexure P-1 on 18.7.2007 Petitioner has again filed this writ petition. 4. Accordingly the claim of Petitioner having being rejected vide Annexure P-1 on 18.7.2007 Petitioner has again filed this writ petition. 4. Shri Arvind Shrivastava, learned Counsel for the Petitioner taking me through the documents available on record particularly the documents sending the Petitioner for training to the course of Physiotherapy and the order Annexure A-5 posting the Petitioner as physiotherapist in the Leprosy Training Centre at Sehore argued that Petitioner having discharged the duties of physiotherapist for more than 15 years was entitled to the salary and pay of the said post i.e. salary and allowances attached to the said post and this benefit cannot be denied to the Petitioner merely because he was not granted regular promotion, Inter alia contending that claim of Petitioner for promotion was not considered through out during the period of his service, even though vide Annexure P-9 the competent authority has recommended for the same and as indicated post of physiotherapist is available. Shri Arvind Shrivastava submits that now even if the case of Petitioner is not being considered for promotion, due to his retirement, he is entitled for pay-scale of the post of physiotherapist. Accordingly, contending that the pay of Petitioner be fixed in the same scale available to the scale of Physiotherapist relief is sought for. 5. Respondents have not filed any reply and Shri Jain learned Counsel for Respondents placing reliance on order Annexure P-1 argued that appointment to the post of physiotherapist is by promotion and as Petitioner is not promoted to the said post up to his retirement it is stated that he is not entitled to any benefit as has been seeking in this writ petition. 6. I have heard learned Counsel for the parties and perused the record. From the records it is clear that Petitioner was ordered to work on the post of physiotherapist and the order Annexure A-5 was passed by the State Government i.e. in the name of Governor by the Additional Secretary of the department concerned. 6. I have heard learned Counsel for the parties and perused the record. From the records it is clear that Petitioner was ordered to work on the post of physiotherapist and the order Annexure A-5 was passed by the State Government i.e. in the name of Governor by the Additional Secretary of the department concerned. It is further clear that after his appointment as physiotherapist vide order Annexure A-5 Petitioner discharged the duties of physiotherapist till his retirement, even though the order does not indicate that the appointment of Petitioner on this post of physiotherapist is after following the procedure contemplated under law, but the fact that Petitioner is working as physiotherapist right from 9.11.1982 till his retirement is apparent from the impugned order Annexure P-1 dated 18.7.2007 by which his claim has been rejected. That being so, merely because the Petitioner is not regularly promoted to the post of physiotherapist and claim of Petitioner for allowance, salary on the post for which he was discharging duties cannot be denied. Normally an employee is entitled to salary attached to the post only if he is duly promoted, but in this case the facts that has came on record indicates that Petitioner's posting order on the post of physiotherapist is passed in the name of Governor by the State Government itself and records indicate that Petitioner had worked on the post of physiotherapist till his date of retirement, Petitioner having discharged the duties on the post of physiotherapist on the principle of 'equal wages for equal work' the benefit has to be granted to the Petitioner and for the purpose of calculating his pensioner benefit and other dues the same may not be considered, but Petitioner having discharged duties on the post of physiotherapist, Respondents are liable to pay the salary arid allowance of the post for the period for which he has discharged the duties as Physiotherapist and there is No. reason why the same benefit was denied to Petitioner, when the facts that has come on record indicates that Petitioner was duly directed by the competent authority of the State Government to discharge duties of physiotherapist at the Leprosy Training Centre at Sehore. 7. Keeping in view aforesaid, the petition is allowed in part. 7. Keeping in view aforesaid, the petition is allowed in part. Even though prayer made by the Petitioner to treat him regularly appointed on the post of Physiotherapist is not granted and is rejected, but Respondents are directed to grant Petitioner the pay in the scale of pay prescribed for the post of physiotherapist for the entire period he discharged duties as physiotherapist i.e. from 9.11.1982 till his retirement. The arrears in this regard are calculated and it be paid to Petitioner within a period of 3 months from the date of receipt of certified copy of this order. 8. Petition stands allowed and disposed of with the aforesaid. Certified copy as per rules.