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2018 DIGILAW 252 (MP)

J. C. Garg (Dr. ) v. State Bank of India

2018-03-05

ASHOK KUMAR JOSHI, SANJAY YADAV

body2018
ORDER 1. Challenge is to an order dated 27.11.2017 passed in Writ Petition No. 491/2015 whereby the appellant’s claim for grant of appropriate increments has been declined. 2. Relevant facts briefly are that the Executive Committee of the Central Board of the State Bank of India in seisin with the proposal for relaxation in terms and conditions of Uniform Terms and Conditions (UTCS) of full time and part time Medical Officers of granting four more increments in the scale of Senior Medical Officers after they reach the maximum of Rs. 19920/- to be notionally fixed in the scale with no arrears with effect from 1.11.2006, in its meeting held on 12.1.2007 accepted the said proposal in the following terms : (i) 4 more increments have been given in the scale to Senior Medical Officers after they reach the maximum of Rs. 19,920/-. The fitment shall take effect from 1.11.2006. The fitment chart is enclosed. 3. The fitment chart enclosed with the said decision as to grant of four increments stipulated as under : EXISTING PROPOSED (1) As from 1.4.2005, the Scale of pay for medical officer will be as under: Part time Medical Officers Scale I: Rs. 10000-470/6-12820-500/3-14320 Part time Senior Medical Officer Scale II: Rs. 14880-560/9-19920 (1) As from 1.11.2006, the Scale of pay for medical officer will be as under: Part time Medical Officers Scale I : Rs. 10000-470/6-12820-500/3-14320 (no change) Part time Senior Medical Officer Scale II: Rs. 14880-560/9-19920- 560/4-22160. 4. Evidently, the four increments were to be given as one time measure by adding the four increments in the scale to Part Time Senior Medical Officer Scale II after they reach the maximum of Rs. 19,920/-. In other words the implementation has not been spread out for four years. This is evident from the fitment chart. 5. Appellant initially appointed on contract basis on 17.6.1985 was regularized as permanent Part Time Medical Officer on 2.6.1989. On 1.6.1994 he reached the maximum scale of Medical Officer and was designated as Permanent Part Time Senior Medical Officer II with effect from 1.6.1994 vide order dated 2.5.1998. The appellant reached the maximum of Rs. 19,920/- on 1.6.2003. However, while according benefit of increment as per decision of the Executive Committee vide circular dated 25.1.2007 the appellant was fixed at Rs. 20480/- as on 1.11.2006 by adding one extra increment. The appellant reached the maximum of Rs. 19,920/- on 1.6.2003. However, while according benefit of increment as per decision of the Executive Committee vide circular dated 25.1.2007 the appellant was fixed at Rs. 20480/- as on 1.11.2006 by adding one extra increment. And thereafter one extra increment was added each year i.e. on 1.6.2007, 1.6.2008 and 1.6.2009. 6. Being aggrieved the appellant filed the Writ Petition No. 491/2015 seeking following reliefs: (i) The circular annexure P-5 may kindly be quashed/set aside. (ii) The respondents may kindly be directed to fix the petitioner's pay scale as per the duly approved memorandum Annexure P-4. (iii) The respondents may kindly be directed to all the fit 3 increments notionally in the petitioner's pay w.e.f. 1.11.2006 as per the duly approved memorandum Annexure P-4. (iv) The respondents may kindly be directed to revise the petitioner's pay by fitting aforesaid 3 increments from 1.11.2006. (v) The respondents may kindly be directed to provide the arrears of pay of the petitioner as per the fixation of 3 notional increments. (vi) The respondents may kindly be directed to provide all other consequential benefits to the petitioners in his pension after fitting 3 notional increments. (vii) Any other relief which this Hon'ble Court may kindly deem fit in the facts and circumstances of the case may kindly be granted. (viii) Costs of litigation may kindly be awarded.” 7. Dwelling upon the reliefs sought by the petitioner, learned Single Judge declined the same holding : 7. Here petitioner is seeking benefits as per memorandum Annexure P-4. Respondents in categorical terms have denied the assertion of the petitioner and specifically submitted that on 16.12.2006 only recommendations were made and in pursuance to that approval has been made as per Annexure P-5. Annexure P-4 was only recommendatory in nature and the benefits have been flown from Annexure P-5 and as per Annexure P-5 benefits have been given to the petitioner. In the present case, petitioner could not able to make out any case that how any adversity has been caused to the petitioner by Annexure P-5. 8. Benefits as referred in the return has been accorded to the petitioner in accordance with Annexure P-5 and, therefore, petitioner cannot make out a case for interference that to the quashment of Circular Annexure P-5. 8. Benefits as referred in the return has been accorded to the petitioner in accordance with Annexure P-5 and, therefore, petitioner cannot make out a case for interference that to the quashment of Circular Annexure P-5. Once the petitioner has availed all the benefits and sitting quite for almost 8 years then preferring this petition by the petitioner appears to suffer from delay and latches also. 9. So long as Annexure P-5 remains, petitioner cannot get the benefit of“ recommendations as referred in Annexure P-4 because once the benefits have been taken by the petitioner from the decision taken by the authority vide Annexure P-5 then at such belated stage, petitioner's claim cannot be considered. It would virtually amounting to unsettle the settled position, because dislodging of Circular Annexure P-5 would have wider ramifications in terms of service conditions of other employees also. No such ground has been raised by the petitioner to reach home any justification regarding quashment of Circular Annexure P-5. 10. Respondents have categorically denied the submissions of the petitioner in respect of alleged discrimination and submitted that no Medical or Senior Medical Officer from Ahmdabad circle has been given any benefit as alleged by the petitioner. Petitioner could not rebut the said denial in specific terms anywhere through documentary support. Therefore, on the basis of discrimination also petition fails. No case for interference is made out because violation of any legal right has not been established. Similarly, petitioner could not establish the omission on the part of the respondents to perform their legal duties, which respondents ought to have performed but could not perform.” 8. Evident it is from the order that the claim has been declined on two counts firstly as to the entitlement of the petitioner for adding of four increments as on 1.11.2006; secondly on the ground of delay. 9. As regard to non-suiting the appellant on the ground of delay, taking into consideration the verdict in M.R. Gupta v. Union of India and others, [ AIR 1996 SC 669 ], wherein their Lordship were pleased to hold : “Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.” 10. We are not inclined to uphold the decision by the learned Single Judge in declining the claim on the ground of delay and latches. As admittedly the claim has been for adding of four increments on 1.11.2006 and since the same was not granted to the appellant which tantamount to continuing wrong which gave rise to recurring cause of action. 11. As regard to the finding that the petitioner was not entitled for adding of four increments as on 1.11.2006 we have our respectful reservation as to the finding recorded by learned Single Judge. 12. 11. As regard to the finding that the petitioner was not entitled for adding of four increments as on 1.11.2006 we have our respectful reservation as to the finding recorded by learned Single Judge. 12. Admittedly with the passing of resolution by the Executive Committee of the Central Board of State Bank of India as circulated vide circular no.25.1.2007 the four increments were to be added at one time (and not be spread over four years) as on 1.11.2006 in the scale of Part time Senior Medical Officer who reached the maximum of Rs. 19,920/-. 13. In the case at hand, evident it is from the record that the appellant reached the maximum of Rs. 19,920/- as on 1.6.2003, grant of increments by spreading out over a period of four years as has been done by the respondents is not countenanced from the decision taken by the Executive Committee of the Central Board of State Bank of India. Therefore, in our considered view the appellant was entitled for adding of four increments to his pay scale as on 1.11.2006. 14. As regard to non-quashment of the order dated 25.1.2017 (Annexure P-5), we find no fault with the learned Single Judge in declining to cause the same as the said circular being in consonance with the decision taken by the Executive Committee of the Central Board of State Bank of India which held its meeting on 12.1.2007. 15. Having thus considered, we partly allow the petition filed by the appellant to the extent of adding of four increments to maximum to his pay of Rs. 19,920/- as on 1.11.2006. The impugned order is modified to said extent. 16. Appeal is allowed to the extent above. There shall be no costs.