Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1295 (MP)

Raj Aram Patel v. State of M. P.

2012-12-14

K.K.TRIVEDI

body2012
JUDGMENT : This order will also govern the disposal of W. P. No. 20041/2011(s), W. P. No. 20043/2011(s), W. P. No. 20045/2011(s), W. P. No. 20046/2011(s), W. P. No. 20047/2011(s) and W. P. No. 20048/2011(s), as the common question is raised in all these writ petitions and all petitions have been heard together. For the purposes of this order, the facts are taken from Writ Petition No. 2003 8/2011(s). 2. The controversy involved in the present petition is whether the policy made by the State Government for grant of time scale pay as circulated on 24-1-2008 contemplates a condition to screen the cases of those for the purposes of grant of second upgradation afresh taking into account their last five years' ACRs or not in case they have been granted the first upgradation in the time scale pay under the very same Scheme. This particular aspect is required to be considered because by the orders impugned dated 28-2-2011 and 5-9-2011, it is communicated to the petitioner that since he has not been found fit by the Committee for grant of second upgradation in the pay scale, his claim is rejected. 3. Facts giving rise to this petition in short are that the State Government was seriously considering to grant benefit of upgradation in the time scale pay to its employees on completion of certain years of service. In view of the recommendations made by various Pay Commissions, it was felt by the State Government that if an employee is appointed initially on one post in a particular pay scale and if he remains working in particular pay scale for a long period, without any opportunity of promotion, it would not be proper as the stagnation in one post in one pay scale may kills the desire to achieve excellence in the service. In view of the law laid down by the Apex Court in several cases wherein it was held that in service career an employee must get two opportunities of upgradation or promotion and such avenues should be provided, the State Government formulated the policy of grant of Kramonnati and circulated the same on 17-3-1999/19-4-1999. There were certain changes made in the said Scheme. There were certain changes made in the said Scheme. It was provided in the said Scheme that on completion of 12 years of service in one pay scale, the next higher pay scale would be granted to the employee concerned in case he has not been given any promotion for the aforesaid period of 12 years. A further upgradation in the pay scale was provided in case the employee completes 24 years of service without any promotion. However, looking to the fact that there were limited posts available for promotion and in number of occasions, it was seen that the lower cadre employees never gets the opportunity of promotion, the State Government formulated a new policy commonly known as "Time Scale of Pay Upgradation Policy" and circulated the same vide circular dated 24-1-2008 issued by Government of Madhya Pradesh in Finance Department (hereinafter referred to as the New Scheme for brevity). The earlier Scheme of Kramonnati was accordingly amended. In the new Scheme, it was specifically provided that on completion of 8 years of service in one pay scale on one post, on which the direct recruitment is made, the upgradation in the next higher pay scale would be granted to the persons serving in the group 'A' of the services. Similarly, the benefit of upgradation in the pay scale was provided to those services who were put in 'B' group, on completion of 10 years of service. 4. While issuing the circular, the same was made applicable with effect from 1-4-2006. The same was made applicable for all those even for whom no specific Scheme was made by the State Government. It was specifically provided that the pay scale of the promotional post mentioned in the Service Recruitment Rules would be the first upgraded pay scale which is required to be granted either on 8 years or 10 years of services as the case may be. A further benefit of second upgradation was prescribed on completion of 16 years or 20 years of services in similar manner. The manner of consideration of cases for grant of such benefit was specifically prescribed in the circular. It was specifically said in paragraph 4 of the new Scheme that for grant of benefit under the new Scheme cases would be considered in the same manner as if the same are to be considered for grant of regular promotion to the employees concerned. It was specifically said in paragraph 4 of the new Scheme that for grant of benefit under the new Scheme cases would be considered in the same manner as if the same are to be considered for grant of regular promotion to the employees concerned. A clarification was made in paragraph 12 and it was specifically provided that in case a Government servant has been granted the benefit of first or second Kramonnati under the Scheme, which were at the relevant time prevalent, his confidential reports would not be reassessed. The head of the department would be competent to grant the benefit of upgradation in the time scale pay under the new Scheme. 5. Certain clarifications were issued by the State Government on 1-4-2008 as queries were raised with respect to the consideration of the case. In paragraph 7 of the circular dated 1-4-2008, these aspects were again clarified and it was again said that in case if an employee is already found fit for grant of Kramonnati or promotion, then his ACRs are not required to be reassessed. Further clarification issued in this respect on 4-8-2008 reiterates the similar circumstances as is clear from paragraph 4 of this circular. 6. The case of the petitioner is that he was granted the first Kramonnati at the relevant time. After coming into force of the new Scheme, his case was required to be considered for grant of upgradation in the time scale pay. However, when the order was issued, the name of the petitioner was not included in the said order. This being so, the representation was made by him. In response to the representation submitted by the petitioner, it was informed by the impugned order that the Departmental Scrutiny Committee considered the case of the petitioner, but since a criteria was evolved by the Departmental Promotion Committee that an employee must get at least 8 marks in the ACRs for the last 5 years and it was found on overall consideration of ACRs of the petitioner that he has obtained less than 8 marks, therefore, he was not found fit for grant of second upgradation. This being so, it is contended by learned counsel for the petitioner that such a consideration of the petitioner was not justified and the order was not rightly passed in respect of his claim. This being so, it is contended by learned counsel for the petitioner that such a consideration of the petitioner was not justified and the order was not rightly passed in respect of his claim. Subsequently, the orders were issued giving benefit of time scale pay to the persons like petitioner without even assessment of their ACRs in terms of the circular issued by the respondents, but the said benefit was not extended to the petitioner and, therefore, the writ petition was required to be filed. 7. Upon issuance of notices of the writ petition, a return has been filed. It is not disputed by the respondents that the petitioner was one who was entitled to grant of second time scale pay with effect from the date he completed 20 years of service, but it is contended that in terms of the policy made by the respondent State, the case of the petitioner was considered and it was found that in the last 5 years, ACRs of the petitioner, he could not achieve such marks, on account of which he could be placed in the list of those who were found fit by the Committee for grant of second time scale of pay. It is contended that in terms of the circular issued by the State Government since the claim of the petitioner was already considered, he was not found fit by the Committee, order was rightly passed and no injustice was caused to the petitioner. However, it is not disputed by the respondents that the petitioner was already granted the benefit of Kramonnati and a promotion way back in the year 2000 and 2003. It is contended by the respondents that the petition being misconceived deserves to be dismissed. 8. Heard learned counsel for the parties at length and perused the record. 9. Now the sole question is whether it was necessary to put the case of the petitioner before any Committee for consideration in terms of the new Scheme made by the State Government. The Scheme prescribes that the benefit as prescribed under the new Scheme would be granted only if an employee fulfills the eligibility conditions as prescribed under the statutory recruitment Rules for promotion. The Scheme prescribes that the benefit as prescribed under the new Scheme would be granted only if an employee fulfills the eligibility conditions as prescribed under the statutory recruitment Rules for promotion. However, this has been further clarified in paragraph 12 of the new Scheme that in case the Government employee has been granted the benefit of Kramonnati in terms of the Scheme made by the General Administration Department of Government of Madhya Pradesh or has been granted a promotion, his ACRs would not be reassessed for the purposes of granting the benefit under the new Scheme. This has been further clarified by circular dated 1 -4-2008 where it is categorically said that once the benefit is extended under the then existing Kramonnati Scheme, then it will not be necessary for rescreening the case of the employee concerned for the purposes of grant of second higher pay scale. However, despite making such a prescription, it is required to be seen whether placing the case of every such employee would be necessary before the Committee for grant of second time scale pay or not. The Kramonnati pay scales are quite different than the time scale pay prescribed under the new Scheme. In fact, the pay scale made applicable to the promotional post of any subordinate post, has been made the time scale pay under the new Scheme on first and second stages. That is how and that is why the specific prescription is made that the claims are to be considered for grant of time scale pay under the new Scheme in the same manner as if promotions are being made under the statutory recruitment Rules and same norms are to be followed. 10. Now if promotions are to be made whether any criteria is prescribed for fixing of any benchmark under the statutory Rules. No benchmarks were earlier prescribed in any of the statutory Rules where the claims for promotion were to be considered. However, by making M.P. Public Services (Promotion) Rules 2002 (hereinafter referred to as 2002 Rules for short), the criteria have been laid down in all circumstances in which the cases are to be considered. The promotions up to Class-I post are to be made on the basis of seniority-cum-merit criteria. Promotion only on Class-I to Class-I posts are to be made on merit-cum-seniority criteria. The Rules prescribed the manner of fixing the benchmark. The promotions up to Class-I post are to be made on the basis of seniority-cum-merit criteria. Promotion only on Class-I to Class-I posts are to be made on merit-cum-seniority criteria. The Rules prescribed the manner of fixing the benchmark. This particular aspect is required to be considered because ultimately granting of a time scale pay is virtually upgradation in the pay scale though not a regular promotion. This particular aspect is further required to be seen that though the Scheme was formulated in the year 2008 after coming into force of the 2002 Rules, but the said Rules are not inserted or made applicable in the Scheme, therefore, it is clear that while making the Scheme, it was never intended by the State Government that any benchmark be fixed for considering the cases for grant of time scale pay. 11. This being so, if the explanation extended by the State Government are seen, it would be clear that all those who have been granted the first or second upgradation under the Kramonnati Scheme or those who have been granted promotion were entitled to be granted the second time scale pay under the new Scheme without referring their cases to any scrutiny Committee. The power was specifically delegated to the heads of departments to issue such order, for this reason only. In the present case, the petitioner was granted the Kramonnati pay scale vide order dated 3-5-2000 (Annx.P/4) and that too was done on consideration of a Committee. Similarly, he was granted a promotion in the year 2003 only after due consideration of his claim by the Departmental Promotion Committee. Again he was promoted vide order dated 23-7-2011 that too only after consideration by the Departmental Promotion Committee. If these promotion orders are taken note of, on completion of 16 years of service from the initial date of appointment, the petitioner would be entitled to grant of second time pay scale under the new Scheme. Thus, putting the name of the petitioner in the list of those who have not achieved the benchmark and on account of that refusing to grant him the second upgradation, is not justified. The orders impugned are thus not sustainable. Another aspect is that similarly situated persons working in the very same establishment have been granted the benefit of second time scale pay by issuance of order on 14-12-2010. The orders impugned are thus not sustainable. Another aspect is that similarly situated persons working in the very same establishment have been granted the benefit of second time scale pay by issuance of order on 14-12-2010. It is not indicated in this order that their cases were required to be considered by any Committee. Simply it is said that on account of completing 10 or 20 years of service, they have been given the benefit of such time scale pay. Thus, on one hand, the claim of the petitioner is rejected on the wrong application of provisions of the new Scheme and ignoring the specific clarification issued by the State Government and on other hand, similarly situated persons in the very same department have been granted the said benefit. 12. In view of the aforesaid, the orders impugned are not sustainable. The same stand quashed. The petitioner would be entitled to grant of second time scale pay from the date he had completed requisite years of service as per the new Scheme. Let the consideration be done in this respect, appropriate orders be issued and all the monetary benefits be extended to the petitioner from the date he completed the requisite years of service. The aforesaid exercise be completed within a period of three months from the date of order. 13. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. Petitions allowed.