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2013 DIGILAW 15 (MP)

Baby John v. State of M. P.

2013-01-02

K.K.TRIVEDI

body2013
JUDGMENT : The petitioner, who was serving as Assistant Superintendent in the Directorate of Sericulture, Bhopal, has approached this Court by way of filing this writ petition under Article 226 of the Constitution of India, ventilating his grievance against the order dated 9-11-2011 by which the petitioner is granted the second higher pay scale in the time scale pay with effect from 9-11-2009 and has also called in question the order dated 15-3-2011 by which a show-cause notice has been issued to him and on the basis of which a major penalty has been imposed on him. He has also called in question the action of respondents by which house rent allowance with effect from May, 2012 to 31-10-2009 has been denied to him and has also complained about non-finalisation of the benefit of pay scale of Rs. 5000 - 8000 as has been recommended by the Brahmaswaroop Committee, but which has not been implemented in the Sericulture Department, on the grounds that the petitioner was entitled to be considered for grant of benefit of higher pay scale in terms of the policy made by the State Government on 24-1-2008. However, in complete ignorance of the said policy, the benefit was extended to the petitioner but not from the appropriate date. Though he was due for grant of second Kramonnati with effect from 1-4-2006, the order in that respect was not issued on the other hand by order dated 9-11-2009 the petitioner was extended the benefit of second higherpay scale with effect from 9-11-2009. The representation in this respect was made but nothing was done, therefore, the petitioner was required to approach this Court. Since the representation was made by the petitioner against such an action of the respondents, he protested against the action of not paying the house rent allowance, by memo dated 15-3-2011 it was said that the action is initiated against the petitioner for committing misconduct of remaining absent from the office. It is contended that a reply was submitted but since nothing was done, a monetary loss was caused to the petitioner just at the fag end of service when he was intimated to superannuate with effect from 29-12-2012. Therefore, he was required to approach this Court by way of filing this writ petition. It is contended that all such actions taken by the respondents are, thus, bad in law. Therefore, he was required to approach this Court by way of filing this writ petition. It is contended that all such actions taken by the respondents are, thus, bad in law. The petitioner would be entitled to grant of relief claimed in this respect. 2. Refuting the allegations made in the writ petition, a return has been filed and it is contended that-in fact the petitioner was not entitled to the relief claimed in the writ petition. A show-cause notice has been issued to the petitioner on account of his remaining absent from duty. A reply has been filed by the petitioner in respect to the said show-cause notice. The order in that respect has been issued and, therefore, now the petitioner is required to challenge such an order if at all he is aggrieved by filing an appeal. It is contended that as far as the house rent allowance is concerned, the wife of the petitioner was also employed in the Income Tax Department of Government of India and was thus entitled to get the house rent from her employer. Husband and wife were living together and, therefore, the petitioner was not entitled to get the benefit of house rent allowance. The wife of the petitioner has retired with effect from 31-10-2009 and a representation was made by the petitioner on the basis of which the order has already been passed sanctioning the house rent allowance to the petitioner with effect from the month of November, 2009. In view of this, no relief whatsoever can be granted to the petitioner and his petition is, thus, liable to be dismissed. 3. Heard learned Counsel for the parties at length and perused the record. 4. Now first of all, it has to be seen whether the case of the petitioner was rightly considered for grant of higher pay scale or not. It is not in dispute that the policy was made by the State Government on 24-1-2008 implementing the scheme of grant of higher pay scale to those employees/officers, who have worked only on one post, in one pay scale for a period of 8/10 years. The second higher pay scale is to be granted on completion of 16/20 years of service. The second higher pay scale is to be granted on completion of 16/20 years of service. The criteria prescribed for grant of such higher pay scale is on the consideration of ACRs of all such persons, who have completed the requisite years of service in the same manner as is prescribed for consideration for grant of promotion in the relevant Statutory Rules. The scheme further contemplates that if an employee is found fit for grant of first higher pay scale, it is not necessary to consider the five years ACRs for the last five years working for the purposes of granting the second higher pay scale. Time and again this has been pointed out by the respondents by issuing the clarification that in case an employee is granted the benefit of Kramonnati or the first higher pay scale, his ACRs are not required to be considered for the purposes of granting second higher pay scale. This particular aspect has also been considered by this Court in the case of Rajaram Patel Vs. State ofMadhya Pradesh and others, W.P. No. 20038/2011 (S), decided on 14-12-2012. It is not in dispute that the petitioner was found fit for grant of Kramonnati pay scale. He was due to be considered for grant of second higher pay scale w.e.f. 2006 as all such persons similarly situated were granted this benefit w.e.f. 1-4-2006. Only with respect to the claim of the petitioner, it is said that when the consideration was done and meeting was held on 21-11-2008, the petitioner was not found fit for grant of this benefit. Though for others, it was said that they were found fit for grant of such benefit. This was mainly done only on account of consideration of the ACRs of the petitioner for last five years. The criteria as prescribed by the respondents was that there should not be any adverse remarks in the ACRs and the last two ACRs should be good. The master chart appended with proceedings indicates that there were no adverse remarks in respect of the petitioner and he was having good remarks for the two years but in the last three years ACRs, average marking was done and, therefore, it was said that the petitioner was not found fit for grant of such benefit. The master chart appended with proceedings indicates that there were no adverse remarks in respect of the petitioner and he was having good remarks for the two years but in the last three years ACRs, average marking was done and, therefore, it was said that the petitioner was not found fit for grant of such benefit. The persons, who were considered along with the petitioner, one was having only four years ACRs but he too was found fit for grant of such benefit. Next consideration of the claim of the petitioner was done on 9-11-2009 and in that year though only in one year's ACR good remark was there and remaining four years remarks for the ACRs were average, yet the petitioner was found fit for grant of such benefit w.e.f. 9-11-2009. This consideration by the Committee for the purpose of granting of this benefit to the petitioner is not understood by this Court. Firstly, there was no requirement of considering the ACRs for the purposes of granting the second higher pay scale in terms of the scheme dated 24-1-2008, wherein in Paragraph 12, this condition was specifically mentioned. Secondly, the criteria was not dependant on the wish of the Committee members. A uniform criteria should have been made applicable. As has been reflected, herein above, for the year 2006 when the consideration was done, despite there being two good remarks in the ACRs, the petitioner was not found fit for grant of second higher pay scale whereas in comparison to this in the year 2009 he was found fit for grant of benefit of second higher pay scale despite the fact that he was having only one good remark and rest of the four were average. Thus, such consideration for the purposes of grant of second higher pay scale done by the respondents cannot be said to be just and proper. 5. Now the question would be whether any major penalty could have been imposed on the petitioner as has been done vide order dated 7-5-2011. It is not in dispute that if an increment of pay is: withheld with cumulative effect, the same would be a major penalty [Please see: Kulwant Singh Gill Vs. State of Punjab, 1991 Supp (1) SCC 504]. It is not in dispute that if an increment of pay is: withheld with cumulative effect, the same would be a major penalty [Please see: Kulwant Singh Gill Vs. State of Punjab, 1991 Supp (1) SCC 504]. In view of the law laid down by the Apex Court, if the increment of pay is withheld with cumulative effect, it will amount to nothing but a major penalty and same cannot be done without detailed enquiry as prescribed under Rule 14 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'Rules'). It is not in dispute that the petitioner was given a show-cause notice dated 15-3-2011, which he has called in question in this writ petition. The response was submitted by the petitioner to the said show-cause notice. The result of the said show-cause notice is the order (Annexure R-3) filed by the respondents by which a penalty of withholding of one increment of pay with cumulative effect has been imposed on the petitioner. It is not the case of the respondents that they conducted a detailed enquiry in terms of Rule 14 of the Rules and thereafter, they imposed the penalty. Thus, in view of the law laid down by the Apex Court in the case of Kulwant Singh Gill (supra), the order of penalty cannot be sustained. 6. Now, the question would be whether the petitioner was rightly given the benefit of house rent allowance from the month of November, 2009 or not Rs. It is not disputed by the petitioner that his wife was also in the Government employment serving with the Central Government and was posted at Bhopal and she too was living with the petitioner. It is not disputed by the petitioner that his wife was not getting the house rent allowance from the Central Government. The house rent allowance is required to be paid to only one spouse and not to both if they are living together in one house. It is mentioned that wife of the petitioner had retired from service on 31st October, 2009. Thereafter, the representation was made by the petitioner and the order was passed giving him house rent allowance w.e.f. November, 2009. This being so, nothing wrong was committed in the matter of granting house rent allowance to the petitioner. 7. It is mentioned that wife of the petitioner had retired from service on 31st October, 2009. Thereafter, the representation was made by the petitioner and the order was passed giving him house rent allowance w.e.f. November, 2009. This being so, nothing wrong was committed in the matter of granting house rent allowance to the petitioner. 7. Now, the last claim of the petitioner is with respect to grant of pay scale of Rs. 5000-8000 as has been recommended by the Brahmaswaroop Committee. It is contended by the respondents in their return that recommendations in this respect have been sent to the Department on 3-7-2007 and the same are pending consideration before the State Government for rectification of the mistake committed in granting the lower pay scale to Assistant Superintendent. This being so, it would be appropriate to direct the respondents-authorities to take final decision in that respect within the time fixed by this Court. 8. Consequently, the writ petition is allowed in part. It is held that the petitioner is entitled to grant of the benefit of second higher pay scale w.e.f. 1-4-2006 from the date the same was made available to other persons serving in the department of the petitioner. It is further held that the order of penalty issued against the petitioner on 7-5-2011 is bad in law and cannot be sustained. However, it is held that the petitioner has rightly been given the house rent allowance from the date he became eligible for the same. The respondents are further directed to finalise the claim of grant of pay scale of Rs. 5000-8000 to the persons like petitioner in terms of the recommendations made by the department on 3-7-2007 expeditiously. 9. Resultantly, this writ petition succeeds to the extent that the petitioner is entitled to the befliefit of grant of second higher pay scale w.e.f. 1-4-2006 instead of 9-11-2009. All the arrears of salary after refixation of pay of the petitioner be calculated and paid to him. Consequently, the benefit of revised retrial dues and the pensionary benefits in terms of the revised pay scale be granted to the petitioner immediately. The order of penalty dated 7-5-2011 (Annexure R-1) is hereby quashed. The amount of increment so illegally withheld be repaid to the petitioner immediately. Consequently, the benefit of revised retrial dues and the pensionary benefits in terms of the revised pay scale be granted to the petitioner immediately. The order of penalty dated 7-5-2011 (Annexure R-1) is hereby quashed. The amount of increment so illegally withheld be repaid to the petitioner immediately. The petitioner would be entitled to the benefit of house rent allowance only from the date the same is made available vide order dated 1-12-2009 (Annexure R-3). The respondents would finalise the claim with respect to grant of pay scale of Rs. 5000-8000 as has been recommended by the department on 3-7-2007 within a period of three months from the date of order and in case, it is found that the persons like petitioner are to be granted this pay scale, the pay of the petitioner be accordingly refixed and all the arrears of salary be paid to him within the aforesaid period. 10. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.