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2013 DIGILAW 100 (MP)

State of M. P. v. Bherusingh

2013-01-21

M.C.GARG, SHANTANU KEMKAR

body2013
JUDGMENT : Heard on LA. No. 747/2008, an application for condonation of delay. 2. This writ appeal has been filed against the judgment dated 18-1-2007 passed in W.P. No. 59/2004 whereby, the appellants have been directed to release the benefits of FR 22-D (Fundamental Rules) in favour of the respondents for the period 1-11-1995 to 12-10-1998 and the consequential benefits to the respondents alongwith interest at the rate of 18% per annum. 3. It is the case of the appellants that the respondent herein was initially appointed as Forest Guard and sent for training. He got completed the training by 30-10-1995. As per the recommendations made by the DPC for promotion as Forester on the vacant post at Dewas, the order of posting dated 13-3-1996 (Annexure P-3) was passed. On joining the duties, the respondent performed the work on the post of Forester and also performed the duties of the higher responsibilities as Annexure A-11. According to the appellants, the order of promotion in respect of the respondent was issued only w.e.f. 31-3-1998 and the pay as per FR 22-D was fixed vide Annexure R-1 w.e.f. 1-3-1999 whereas, the respondent wanted fixation of higher pay w.e.f. 13-3-1996 on the basis of Annexure P-3, which it is submitted was not the order of promotion. However, the learned Single Judge passed an order in favour of the respondent. 4. While disposing of the writ petition some observations were made in the said order which are relevant for the purpose of appreciating the case of the parties are reproduced here as under :- "I have heard learned Counsel appearing for parties and perused the record. On perusal of the record, it is apparent that initial appointment of the petitioner was on the post of Forest Guard and the next promotion is as Forester, after the training, under the rules. Petitioner has successfully completed his training on 30-10-95. Thereafter, relying on the DPC recommendations, order of posting as Forester, on the vacant post at Dewas was passed Annexure P-3, dated 13-3-96. Petitioner has joined the duties as Forester, and also performed the work of Sahayak Van Parikshetra Adhikari, as apparent from Annexure P-11. In view of the above facts, it is apparent that the petitioner has been posted on the vacant post of Forester which is a post bearing higher responsibilities and duties attached to the higher pay-scale. Petitioner has joined the duties as Forester, and also performed the work of Sahayak Van Parikshetra Adhikari, as apparent from Annexure P-11. In view of the above facts, it is apparent that the petitioner has been posted on the vacant post of Forester which is a post bearing higher responsibilities and duties attached to the higher pay-scale. The order of regular promotion was issued somewhere in the year of 1998, however, after issuing such order the fixation has been directed vide order Annexure R-1 with effect from 1-3-99. In view of the aforesaid facts and the averments as made in the return, it is not in dispute that petitioner has performed the duties of Forester pursuance to the order dated 13-3-90 in the Forest Division, Dewas. The post of the forester is of the higher responsibility, than the post which the petitioner was holding at the relevant time. In the case of Dayaram Patidar (supra), this Court has interpreted the provisions of FR 22-D and accrued the same to the employees. In the facts of this case, judgment of Dayaram Patidar (supra), is fully applicable. However, it is to be held that, petitioner shall entitled to the benefit of FR 22-D with effect from 13-3-96 but notionally, because of belated filing of this petition. However, during the period from the date of passing the order, i.e., 13-3-96 till fixation as per order (Annexure R-1), dated 1-3-99, petitioner's pay shall be notionally fixed without payment arrears to him. It is further made clear here that benefit of FR 22-D is allowed on belated filing of the petitioner, the petition, because of notional fixation of his pay, the present pay may be revised, however, he is having recurring cause of action in the matter of his pay fixation in the scale and in the corresponding scale of pay. Consequently, this petition is allowed in part. Respondents are directed to grant the benefit of FR 22-D to the petitioner with effect from 13-3-96 till grant of such benefit as per Annexure R-l, dated 1-3-99. The respondents are further directed to re-fix the pay of petitioner, notionally fixation petitioner shall not be entitled for the arrears of salary, during such period. He shall be entitled for futuristic benefit from the date of passing of this order. Accordingly, this petition is allowed in part. The respondents are further directed to re-fix the pay of petitioner, notionally fixation petitioner shall not be entitled for the arrears of salary, during such period. He shall be entitled for futuristic benefit from the date of passing of this order. Accordingly, this petition is allowed in part. In the facts and circumstances of the case, there is no order as to costs." 5. This order has been passed by the learned Single Judge on 18-1-2007 whereas, the present appeal has been filed only on 14-1-2008, i.e., after about a year condonation of delay has been sought vide LA. No. 747/2008. 6. The reasons which have been given for condoning the delay are as follows:- "2. That after passing the order dated 18-1-2007, the legal opinion was sought, which was received vide letter No. 11698, dated 29-8-2007. On the basis of the said opinion, the matter was sent through the higher authorities to the Law and Legislative Affairs Department, Government of M.P., Bhopal for seeking the necessary sanction to file the writ appeal before the Hon'ble Court. The Law Department has granted the permission for filing the writ appeal on 23-11-97. Thereafter, on receiving the said information by the Department, the Officer Incharge of the case has been appointed and thereafter the Officer Incharge of the case has collected the necessary documents and filed the present appeal before this Hon'ble Court." 7. Admittedly, there is a delay of 297 days in filing of the writ appeal. The circumstances narrated in Para 2 do not show any good ground for condoning the delay. 8. Moreover, even on merits, the documents annexed with the writ petition in particular Annexure P-3 shows that the said order was in fact the recommendation of the DPC for promotion. The said order reads as under :- XXX XXX XXX The aforesaid order shows that virtually the order of promotion was passed with a direction to the petitioner to start working at the promoting post, though the formal order was issued subsequently. The petitioner has stated that after the training was performed he started getting pay of Forester, i.e., at the higher post. Later on, the order (Annexure P-13) was passed. 9. The judgment in question is also based upon the judgment delivered in the case of Dayaram Patidar in W.P. No. 1104/2001, by the Division Bench of this Court itself. The petitioner has stated that after the training was performed he started getting pay of Forester, i.e., at the higher post. Later on, the order (Annexure P-13) was passed. 9. The judgment in question is also based upon the judgment delivered in the case of Dayaram Patidar in W.P. No. 1104/2001, by the Division Bench of this Court itself. The said judgment has not been challenged before the Higher Court. In that case, in similar circumstances, when the order of promotion was passed later, but the incumbent was getting salary of the higher post. The petition filed by the State of M.P. was dismissed and it was held that :- "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 FR 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 is logical also. So even when 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 can not be denied to him. 15. Petitioners' contention that respondent's pay fixation has been done under FR 22-D (a) (11) which was financially more beneficial to him is not acceptable to this Court. If factually that is the position then petitioners are no going to be put to any financial lose, even, if they are required to give benefit of FR 22-D to the respondent. Thus, this ground is negatived on petitioner's own admission made before the Tribunal in their reply. It has already been held by a Bench of this Court that circular of the Finance Department shall not be binding on the respondent, as respondent has to be given benefit from the date he assumes charges on the promoted post and financial sanction has no role to play in it." 10. It has already been held by a Bench of this Court that circular of the Finance Department shall not be binding on the respondent, as respondent has to be given benefit from the date he assumes charges on the promoted post and financial sanction has no role to play in it." 10. The case of the respondent is exactly similar to that of Dayaram Patidar (supra). The order passed in the case of Dayaram Patidar (supra), has not been assailed by the appellants before any higher authority. 11. No merit in the case and also find no reason. In these circumstances, neither there is any merit in the case of the appellants nor they have been able to satisfy this Court about the reasons in filing the writ appeal belatedly. 12. Thus, while dismissing the application (LA. No. 747/2008) seeking condonation of delay, we also dismissed the writ appeal.