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Madhya Pradesh High Court · body

2015 DIGILAW 458 (MP)

Asha Bajpai v. State of M. P.

2015-04-21

SUJOY PAUL

body2015
ORDER 1. This is third visit of the petition to this Court. The petitioner was initially appointed as Upper Division Teacher (1400-2640) by order dated 28.11.1974. The petitioner completed 12 years of service and on such completion, she was given financial upgradation/krammonati w.e.f. 9.12.1986 in the pay scale of 1640-2900/-. The petitioner was then promoted on the post of Head Mistress in the pay scale of 1540-2760/- w.e.f. 31.1.1989. 2. The petitioner filed Writ Petition No.3826/2007 which was decided on 22.8.2007 (Annexure P-4). The operative portion reads as under :- “The aforesaid point has been decided by the Bench of this Court in the case of R.S.Sikarwar v. State of Madhya Pradesh and others, reported in 2004(3) MPLJ 397 , hence with consent of both the parties case is finally disposed of with the direction to the respondents that the case of the petitioner be also considered with regard to grant the benefit of FR 22-D after verifying the facts and if petitioner is entitled, her pension be re-fixed after giving the benefit of FR 22-D. The recovery of amount of Rs.34,909/- is hereby quashed.” 3. Shri Anil Sharma submits that the amount which was recovered, i.e., Rs.34,909/- was refunded to the petitioner but the benefit of FR 22-D was not extended. The petitioner then filed Writ Petition No.7563/11 which was decided on 3.1.2011 (Annexure P-5). This Court again issued similar directions which were given earlier in relation to the claim of petitioner about benefit of FR 22-D. Cost was also imposed on the respondents. Thereafter also benefit of FR 22-D was not given which compelled the petitioner to file this petition. He relied on 2004(3) MPLJ 397 (R.S. Sikarwar v. State of Madhya Pradesh and others), and 2013(1) MPWN 11 =2013(1) MPHT 127 (Ram Siya Sharma v. State of M.P. and others). 4. The stand of the petitioner is that her movement from UDT to Headmistress amounts to promotion on a higher post which involves duties and responsibilities of greater nature. Hence, she is entitled to get the benefit of FR 22-D on the pay scale which she was holding before her promotion. Admittedly, the krammonati pay scale received by the petitioner from 1986 and the pay scale of UDT is same, i.e., 1640-2900/-. 5. Per contra, the stand of the Government is based on a Finance Department circular dated 25.5.1998 (Annexure R-2). Mrs. Admittedly, the krammonati pay scale received by the petitioner from 1986 and the pay scale of UDT is same, i.e., 1640-2900/-. 5. Per contra, the stand of the Government is based on a Finance Department circular dated 25.5.1998 (Annexure R-2). Mrs. Patankar relied on the following portion of the return :- “Here it is made clear that before promotion on completion of 12 year service she has been extended benefit of time bound promotion (benefit of higher pay scale) in pay scale 1640-2900, while her initial pay was 1540-2760, therefore, to extend the benefit on account of her promotion on the post of Head Mistress, her original pay which was getting by her as substantive post i.e., 1540-2760 was to be revised as per FR 22-D(1). In other words to extend the benefit of FR 22-D(1) on her promotion on the post of Head Mistress pay scale of 1540-2760 (original pay) was to be revised. The basis difference is that the petitioner had assumed to get benefit of FR 22-D(1) from the pay scale 1640-2900 which has been extended on account of completion of 12 years of service towards the benefit of the time bound promotion scheme.” 6. In view of aforesaid rival contentions, the basic question is whether petitioner is entitled to get benefit of FR 22-D on the scale of 1640-2900 or is entitled to get the said benefit on the scale attached to the post of UDT (1540-2760). Ancillary question based on Annexure R-2 is whether the decision of State Government reproduced in Anenxure P-6 is justifiable, which reads as under :- **-------;fn dksbZ 'kkldh; lsod ftls foHkkxh; ØeksUufr ;kstuk ds varxZr ofj"B izoj Js.kh osrueku esa osru ikus dh vuqefr nh xbZ gS vius lkekU; osru Øe esa fu;fer :i ls mPp in ij leku osrueku esa inksUur gksrk gS a rks ,sls inksUufr ij mldk osru fu/kkZj.k fuEu in dh lkekU; osru Js.kh esa ;fn og dk;Zjr jgrk vksj osru ikrk mlds vk/kkj ij ewy fu;e 22 Mh ds varxZr vFkok ØeksUur osrueku esa izkIr osru ds lanHkZ esa ewy fu;e 22¼,½¼2½ ds varxZr blesa mls tks Hkh vf/kd ykHk nk;d gks fd;k tk,xkA** 7. I have heard the learned counsel for the parties and perused the record. 8. It cannot be doubted that promotional post of Head Mistress carries duties and responsibilities of greater nature. I have heard the learned counsel for the parties and perused the record. 8. It cannot be doubted that promotional post of Head Mistress carries duties and responsibilities of greater nature. Admittedly, petitioner was getting same pay scale because of her financial upgradation w.e.f. 1986. In other words, the petitioner was in the pay scale 1640-2900 before her promotion on the post of Head Mistress which also carries the same scale. In R.S.Sikarwar (supra), this Court considered this aspect. The same circular dated 25.5.1998 was also taken note of in para 2 of the said judgment. After considering FR 22-D and FR 22-A, this Court opined that the Government servant would be entitled to get his pay fixed in accordance with FR 22-D(i) of the Rules. A plain reading of this judgment makes it clear that this Court has taken note of the fact that promotion was made to a post which carried the same pay scale which employee was already getting pursuant to grant of Kramonnati benefits. The judgment of R.S.Sikarwar (supra), is based on the judgment of Kunti Saxena v. State of M.P. In the said case, it was held that whenever an employee is promoted to discharge the functions of higher post with greater responsibility, even if the pay scale of feeder cadre and promotional post is identical, the employee has to be paid the benefit of FR 22-D. This Court in Ram Siya Sharma (supra), considered the purpose of grant of financial upgradation under Kramonnati Yojna and the purpose of grant of FR 22-D. This Court opined as under in para 6 :- “6. The reasons for grant of Krammonati and FR 22-D are different. It has no co-relation with each other. It is settled in law that benefit of Krammonati or financial up-gradation is granted when employee is not getting promotion for a considerable long time/stipulated period. To avoid the stagnation, he is being granted financial up-gradation which does not involve any change of nature of duties and responsibilities. In other words, upon grant of Krammonati, the employee performs same nature of duties with same designation, but gets higher scale of pay, whereas FR 22-D is given when employee is promoted from one post to another carrying same pay scale but having greater responsibilities and duties. In other words, upon grant of Krammonati, the employee performs same nature of duties with same designation, but gets higher scale of pay, whereas FR 22-D is given when employee is promoted from one post to another carrying same pay scale but having greater responsibilities and duties. Petitioner's specific assertion that the post of Head Master is carrying greater responsibilities and duties is not disputed by the other side. Thus, FR 22-D is clearly applicable. This Court in R.S.Sikarwar (supra), has also considered the same and decided to extend the benefit to the petitioner. Consequently, the stand of the respondents that FR 22-D is not applicable because of grant of financial up-gradation is without any basis and substance. No provision is shown to this Court which deprives the benefit of FR 22-D to the petitioner on grant of financial upgradation. Consequently, the recovery arising out of taking away the benefit of FR 22-D is also impermissible.” 9. In the light of aforesaid judgments, in my view, the petitioner is entitled to get the benefit of FR 22-D on the pay scale of 1640-2900. 10. The matter may be viewed from another angle. FR 22-A (ii) makes it clear that it is applicable to such appointments where new post does not involve assumption of higher/greater responsibility whereas FR 22-D(I) makes it clear that it is applicable to a post which carries duties and responsibilities of greater importance. At the cost of repetition, it may be noted that the promotional post of Headmistress carries greater responsibility qua the feeder post of UDT. Thus, petitioner's case falls within the ambit of FR 22-D(i) and not under FR 22-A(ii). Thus the formula devised by the respondents and reproduced in para 6 of this order has no application. Once the petitioner's case is not covered under FR 22-A (ii), the question of comparing the benefits and granting one benefit does not arise. Putting it differently, FR 22-D(i) begins with non obstente clause. It has an overriding effect on other provisions of Fundamental Rules. Thus, once FR 22-D (I) becomes applicable, it automatically makes the other provision inapplicable in this regard. Thus, the contention of department and ground based on FR 22-A(ii) pales into insignificance. It is noteworthy that when FR came into being, Kramonnati Yojna was not applicable. It has an overriding effect on other provisions of Fundamental Rules. Thus, once FR 22-D (I) becomes applicable, it automatically makes the other provision inapplicable in this regard. Thus, the contention of department and ground based on FR 22-A(ii) pales into insignificance. It is noteworthy that when FR came into being, Kramonnati Yojna was not applicable. Thus, intention of law makers was to give benefit on the last pay scale enjoyed by the employee. Accordingly, the petitioner is entitled to get benefit under FR 22-D on the pay scale of Rs.1640-2900. 11. For this reason, the action of respondents is declared as illegal. The respondents are directed to grant benefits of FR 22-D to the petitioner in the pay scale of Rs.1640-2900. The said exercise be completed within 90 days from the date of production of copy of this order. The petitioner shall get the difference of the amount with 12 per cent interest on delayed payment. In addition, the petitioner shall get Rs.5000/- as cost for compelling her to file this avoidable litigation. 12. Petition is allowed. ................