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2012 DIGILAW 403 (MP)

State of M. P. v. Amit Kumar Parikh

2012-04-13

P.K.JAISWAL, U.C.MAHESHWARI

body2012
JUDGMENT P.K. JAISWAL, J. 1. This intra Court appeal has been filed by the appellants - State against the order dated 15.12.2010, passed by the learned Single Judge in W.P. No.9872/2010 (S), whereby learned Single Judge has held that respondent (petitioner in the writ Court) is also entitled for grant of regular increments after completion of one year from the date of his appointment keeping in view the provisions of M.P. Irrigation Department (Non- Gazetted) Service Recruitment Rules, 1969 and directed them to conclude the whole exercise of granting the increments, arrears and other consequential benefits to him within a period of 3 months from the date of receipt of certified copy of this order dated 15.12.2010. 2. Learned Panel Lawyer has submitted that as per recruitment Rules at the time of appointment there was stipulation regarding passing of Hindi typing examination and thus at the time of appointment that was one of the precondition for appointment, the learned Writ Court committed an error by granting annual increments on successful completion of an year of service from the date of appointment, whereas the State Government granted the said benefit to the respondent w.e.f. 1995, when he passed the typing examination and prays that impugned order be set aside. 3. It is not in dispute that respondent was appointed in the service of the Water Resources Department of the State Government of M.P. and his services are governed under the recruitment Rules known as M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969. 3. It is not in dispute that respondent was appointed in the service of the Water Resources Department of the State Government of M.P. and his services are governed under the recruitment Rules known as M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969. Rule 8 of the aforesaid Rule prescribes conditions of eligibility for direct recruitment and B of the aforesaid Rule prescribes educational qualification which reads as under:- “(B) Educational qualification – He must possess the educational qualification as prescribed for the service as shown in Schedule III provide that :- (i) in exceptional case the Chief Engineer may on the recommendation of the selection committee /Appointing Authority treat as qualified a candidate, who though not possessing any of the qualification prescribed in this clause, has passed examination conducted by other institutions by a standard which in the opinion of the Engineer-in-chief/Chief Engineer, justifies the consideration of the candidate for selection, and (ii) Candidates who are otherwise qualified but have taken degrees from foreign Universities, being Universities not specifically recognized by Government may also be considered for selection at the distance of the concerned Chief Engineer.” and Schedule 3 of the aforesaid Rule prescribes qualification for a Lower Division Clerk is as under:- “Lower Division Clerk 18 years 25 years Matriculation or equivalent examination pass, Preference to those possessing certificate in typewriter.” 4. From perusal of the aforesaid, it is clear that passing of typing examination is not a precondition nor it was mandatory. However, it is mentioned in the recruitment rule that preference is to be given to those persons who possessed the typing certificate of Hindi and it is also a fact that after judgment of M.P. High Court and the Tribunal a circular was issued by the General Administration Department of the State Government on 6.7.1995 and directed that the employees who were appointed prior to 22.8.1973 on regular post would be given regular increment from one year of their initial appointment. The learned Single Judge after considering the judgment of W.P.No.4148/2005(S) Dongar Singh Pawar v/s. State of M.P. & Ors. and the judgment of the Division Bench of this Court in the case of State of M.P. & Ors. The learned Single Judge after considering the judgment of W.P.No.4148/2005(S) Dongar Singh Pawar v/s. State of M.P. & Ors. and the judgment of the Division Bench of this Court in the case of State of M.P. & Ors. v/s. Sushma Surana & Ors., passed in W.P. No.712/2000 wherein it has been held that an employee is entitled for grant of increments from the date of his initial appointment on successful completion of an year of service from the date of appointment passed the impugned order. 5. Para 7 and 8 of Sushma Surana & Others (Supra) are relevant which reads as under:- “7. The Hon’ble Supreme Court in the matter of State of Maharashtra v/s. Jagannath Achyut Karandikar reported in AIR 1989 SC Pg. 1133 has held that Executive instructions may supplement but not supplant statutory rules. Apart from this, the General Administration Department, vide circular dated 6.7.95 also directed that an employee who was appointed prior to 22.8.1973 would be given regular increment, even though he did not pass the typing examination and there is no nexus to deny the same benefit to the petitioners who were appointed after 22.8.1973 on regular basis. 8. The judgment cited by the learned counsel for the respondents of the Division Bench passed in W.P.No.712/2000 State of M.P. and Ors v/s. Sushma Surana is distinguishable. In the aforesaid case, the Tribunal granted a regular increments to an employee from the date of initial appointment which was on ad-hoc basis. 8. The judgment cited by the learned counsel for the respondents of the Division Bench passed in W.P.No.712/2000 State of M.P. and Ors v/s. Sushma Surana is distinguishable. In the aforesaid case, the Tribunal granted a regular increments to an employee from the date of initial appointment which was on ad-hoc basis. The petitioner in that case was regularized in the year of 1999 and in that circumstances the Division Bench has quashed the order of the Tribunal with regard to grant of regular increments from the year of 1988 and also the Division Bench noted the fact that the Tribunal granted the benefit of grant of increments to the petitioner from the year of 1988 when she was engaged on ad-hoc basis and at that time it was the condition in the appointment order that the petitioner has to pass the typing examination certainly, the condition of the appointment order can be relied on in the case of an ad-hoc employee because an ad-hoc employee has no statutory status, but the case of the regular employee who has been appointed as per the Recruitment Rules is on a different footing and in the present case, the petitioners were appointed on a regular basis as per the provisions of Recruitment Rules. Hence, they could not denied the benefit of increments contrary to recruitment rules only on the basis executive circular.” 6. In view of the aforesaid and also to the fact that 1969 Rules do not provide for typing examination as an essential qualification for the post in question. The petitioner made number of representations for grant of annual increments, which was rejected on 24.4.2010. Against the said order he filed the Writ Petition No.9872/2010 (s), which was allowed by this Court by impugned order dated 15.12.2010. 7. In view of the aforesaid, we are of the view that learned Single Judge has not committed any legal error in directing the respondents to grant annual increments to the petitioner because he successfully completed one year of service, from the date of initial appointment. No case for interference with the order as prayed by the learned Panel Lawyer is made out. The writ appeal filed by the appellants has no merit and is liable to be dismissed. 8. For the above mentioned reasons, the writ appeal is accordingly dismissed. No case for interference with the order as prayed by the learned Panel Lawyer is made out. The writ appeal filed by the appellants has no merit and is liable to be dismissed. 8. For the above mentioned reasons, the writ appeal is accordingly dismissed. So also the I.A.No.1223/2012, an application for condonation of delay is also dismissed.