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Madhya Pradesh High Court · body

2016 DIGILAW 549 (MP)

Jagdish Prasad Tiwari v. State of M. P.

2016-07-12

VIVEK AGARWAL

body2016
ORDER 1. Petitioner has filed this petition challenging the order dated 29.6.2010, whereby benefit of pay-fixation to the petitioner taking into account increment after completion of one year of service, has been cancelled on account of some objection taken by the Office of Treasury and Accounts that petitioner who was appointed as LDC on 1.1.1975 had passed Hindi Typing Test on 19.12.1976 and, therefore, he was not entitleld to grant of increment in the existing pay of Rs.169-4-185-5-240-EB-6-270-10-300 and accordingly re-fixation has been made vide impugned order dated 29.6.2010. Consequent to the said re-fixation of pay, petitioner has been put to loss of one increment which has been withdrawn retrospectively from the year 1976 and accordingly petitioner has prayed for quashing of the impugned order dated 29.6.2010, Annexure P-1, and also to assign him seniority from the initial date of appointment i.e. 1.1.1975. 2. Learned Government Advocate has submitted that petitioner since passed Hindi Typing Test on 19.12.1976 and produced the certificate dated 20.1.1977, therefore, he is entitled for the benefit of increment w.e.f. 20.12.1977 which was wrongly extended to him from 2.1.1976, therefore, as per the objection raised by the Joint Director, Account and Treasury, the order Annexure P-1 was passed which is fully justified under the facts and circumstances of the case. No document has been filed along with the return. But learned counsel for the respondent has relied on the judgment dated 23.11.2015 passed by Full Bench of this Court in Writ Petition No.13259/2011(S) (Manoj Kumar purohit and others v. State of M.P. and others), and other connected 19 matters. Learned Government Advocate for the State by placing reliance on the said judgment submitted that the issue which arises for decision in the present petition has already been decided by the Full Bench and, therefore, this issue being fully covered by the decision of Full Bench need not be decided again and petition be dismissed. 3. As has been submitted above no document has been filed by the respondents along with their return, but at the time of arguments learned counsel for the respondents provided a copy of Recruitment Rules namely Madhya Pradesh Excise Subordinate Class III (Ministerial) Service Recruitment Rules, 1983. 3. As has been submitted above no document has been filed by the respondents along with their return, but at the time of arguments learned counsel for the respondents provided a copy of Recruitment Rules namely Madhya Pradesh Excise Subordinate Class III (Ministerial) Service Recruitment Rules, 1983. A bare perusal of the said Recruitment Rules demonstrates that they are applicable only for recruitment which have been place after coming into force of the said Recruitment Rulels and, therefore, though a qualification has been provided that a candidate for appointment as LDC should pass Typing Test, but that qualification cannot be extended from a retrospective date inasmuch as the Recruitment Rules are not applicable retrospectively. Learned Government Advocate for the State was categorically asked to provide copy of those Rules which were applicable in the year 1974-75 when the petitioner was appointed on the post of LDC, but learned Government Advocate fairly submits that there were no Rules for recruitment of LDC prevailing in the Office of Excise Commissioner in the year 1975. In this backdrop, applicability of the judgment rendered by Full Bench is to be examined to the facts and circumstances of the present case. 4. Following questions have been considered by the Full Bench of this Court in case of Manoj Kumar Purohit and others (supra), namely : (A) Whether an employee is entitled to increment from the initial date of appointment or only from the date of passing of Hindi Typing Test, because of such condition specified in his leltter of appointment? Further, is to open to the appointing authority to provide such a condition in the letter of appointment? (a) When the Recruitment Rules expressly prescribe condition of passing Hindi Typing Test? (b) When the Recruitment Rules are silent but the letter of appointment contains such stipulation about passing of Hindi Typing Test? (c) When the Recruitment Rules provide that preference would be given to candidates who have passed Hindi Typing Test and the letter of appointment contains such stipulation? (d) When the appointment is made under the Policy of Compassionate Appointment or Regularization specifying passing of Hindi Typing Test as essential and also the letter of appointment provides for that condition for entitlement of increment? (d) When the appointment is made under the Policy of Compassionate Appointment or Regularization specifying passing of Hindi Typing Test as essential and also the letter of appointment provides for that condition for entitlement of increment? (B) When the appointment is made under the policy of either Compassionate Appointment or Regularization and the Policy expressly provides that passing of Hindi Typing Test is essential, absence of such condition in the letter of appointment would make anydifference? (C) Whether decision in the case of State of M.P. v. Onkarlal [2011(3) MPLJ 404], and State of M.P. v. Ku. Ramani Bai Bhagat [2013(1) MPHT 96], lay down correct proposition of lalw? 5. These questions have been answered by the Full Bench of this Court in para 20 in the following manner : (i) Question (A)(a) : An employee appointed in accordance with the Recruitment Rules which makes passing of the Hindi Typing Test essential, would be entitled to increment only after passing such test. (ii) Question (A)(b) : If the Recruitment Rules are silent with regard to entitlement to the grant of increment on passing the Hindi Typing Test, then in such a case if the requirement of passing Hindi Typing Test is incorporated in the letter of appointment, the employee would be entitled to increment only after passing the Hindi Typing Test. (iii) Question (A)(c) : Where the Recruitment Rules provide that preference would be given to the candidate who has passed Hindi Typing Test, in such a case also the employee would not be entitled to grant of increment, if the order of appointment contains such a stipulation. He would be entitled to grant of increment from the date of passing Hindi Typing Test. (iv) Question (A)(d) : Where under the policy as well as letter of appointment provide for passing of Hindi Typing Test, in such a case the employee would be entitled to increment only after passing Hindi Typing Test. (v) Question (B) : If an employee has been appointed under the policy either of compassionate appointment or regularization and if policy provide for requirement of passing Hindi Typing Test essential, the concerned employee would be entitled to benefit of increment only after having passed Hindi Typing Test, even in the absence of such a stipulation in the letter of appointment. (vi) Question (C) : The decision rendered in the cases of State of M.P. v. Onkarlal [ 2011(3) MPLJ 403 ], and State of M.P. and others v. Ku. Ramani Bai Bhagat [2013(1) MPHT 96], do not lay down correct proposition of law. 6. Now what is to be seen is that case of the petitioner will be covered by which category. Question A(a) deals with the Provisions where the Recruitment Rules expressly prescribed condition of passing Hindi Typing Test. In the present case, Government Advocate has not shown as to which Recruitment Rules were applicable at the time of appointment of the petitioner, therefore, question A(a) is not applicable to the facts and circumstances of the case. 7. Question A(b) deals with condition where Recruitment Rules are silent, but leltter of appointment contains stipulation about passing of Hindi Typing Test. In the present case, even this situation is not applicable inasmuch as appointment order, Annexure P-2, does not prescribe any condition or stipulation about passing of Hindi Typing Test. 8. Question A(c) deals with condition where Recruitment Rules provides for preference to a candidate who has passed Hindi Typing Test and the letter of appointment contains such stipulation. Case of the present petition is not covered even by this category as neither Recruitment Rules were in vouge at the time of petitioners appointment, nor letter of appointment contains such stipulation. 9. Question A(d) deals with appointment made under the Policy of Compassionate Appointment or Regularization specifying passing of Hindi Typing Test as essential and also the letter of appointment provides for that condition for entitlement of increment. In the present case, petitioner has relied on document Annexure P-4 dated 29.4.1986, whereby Assistant Commissioner, Excise, had informed the District Excise Officer that no condition of passing Hindi Typing Test has been imposed and, therefore, petitioner is entitled to draw his increment w.e.f. 2.1.1976. It is apparent from Annexure P-2 that petitioner's appointment was not a compassionate appointment, nor there was any order of regularization or there is any condition in the letter of appointment of passing of Hindi Typing Test for entitlement of increment. Thus, petitioner's case does not fall in any ofthe categories formulated by the Full Bench under the question 'A'. 10. Thus, petitioner's case does not fall in any ofthe categories formulated by the Full Bench under the question 'A'. 10. In fact of category 'B' is almost similar to that of A(b) with marginal different, but Government Advocate has not pointed out that petitioner was appointed under some policy and the said policy contains a stipulation that passing of Hindi Typing Test is essential. Therefore, petitioner's case even does not fall under the answer to question 'B'. 11. As far as law laid down in the case of State of M.P. and another v. Onkar Lal, as reported in (2011)3 MPLJ 403 , is concerned, in that case requirement of passing of Hindi Typing Test was mentioned in the letter of appointment. Thus, the case of Onkar Lal (supra), is in fact covered in terms of question A(b) but as has been discussed above said position is not there is the case of the petitioner. Similarly, in the case of State of M.P. and others v. Ku. Ramani Bai Bhagat, the appointment order contains a stipulation of passing Hindi Typing Examination. The ratio of the said decision is that if there was no stipulation in the Recruitment Rules, then the circular which is an executive instruction has not overwritten the eligibility prescribed in the Rules. But in the present case as the time of appointment of the petitioner neither there were any Recruitment Rules, nor any policy under which the petitioner was appointed nor any policy under which the petitioner was appointed nor any circular or stipulation contain the condition of passing of Hindi Typing Test as a pre-condition for release of increment, therefore, case of the petitioner is also not covered by question (C) of the judgment of the Full Bench. 12. Thus, as has been narrated above as the appointment of the petitioner was neither under any Recruitment Rules prescribing qualification of passing of Hindi Typing Examination, nor under any circulalr or policy containing such stipulation, nor appointment order contains such stipulation, the petitioner's case is different from the questions decided by the Full Bench and, therefore, the petition deserves to be allowed and is hereby allowed. Consequently, order dated 29.6.2010, Annexure P-1 is hereby quashed. 13. The petitioner is entitled to retain the pay-fixation as was done vide order Annexure P-5 on 30.5.1986 with all consequential benefits. 14. Consequently, order dated 29.6.2010, Annexure P-1 is hereby quashed. 13. The petitioner is entitled to retain the pay-fixation as was done vide order Annexure P-5 on 30.5.1986 with all consequential benefits. 14. Respondents to bear cost of this petition quantified as Rs.2,000/-.