Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 405 (MP)

Shailendra Tomer v. State of M. P.

2020-03-12

S.A.DHARMADHIKARI

body2020
ORDER 1. This petition under Article 226/227 of the Constitution of India has been filed for issuance of suitable writ, order and directions for doing justice in the matter. 2. The necessary facts for disposal of the present petition in short are that the Petitioners were appointed on the post of Shiksha Karmi as per the provisions of M.P. Panchayat Shiksha Karmi (Bharti Tatha Sewa Ki Sharten) Niyam, 1997 (In short ''Rules, 1997'') and were posted in different schools. A decision was taken by the State Govt. to create a new cadre of Adhyapak and the petitioners were absorbed on the post of Adhyapak under M.P. Panchayat Adhyapak Samvarg (Employment and condition of Service) Rules, 2008 (In short ''Rules 2008'') and were posted in the same school. It is further pleaded that by circular dated 21.2.2013, the pay scale of the petitioners were revised and they were given the advantage of Krammonnati and Promotion. Thereafter, again by circular dated 4.9.2013, a decision was taken to grant the pay scale equal to the teacher cadre which was being granted in the Govt. School. Thereafter a decision was taken to extend the benefit of recommendation of 6th pay commission to the Adhyapak Cadre and accordingly circular dated 25.2.2016 was issued. Thereafter, a circular dated 31.5.2016 was issued wherein it was mentioned that the pay scale shall granted on the basis of the present pay scale which is allowed to Adhyapak Cadre. Thereafter, a letter was issued and the circular dated 31.5. 2016 was kept in abeyance. Thereafter, new circular dated 15.10. 2016 was issued, for granting the pay scale provided on the basis of the existing pay scale. Thereafter, under an impression that there is an anomaly in the circular dated 15.10.2016, therefore, order dated 7.7.2017 has been issued for grant of benefits of 6th pay commission on the basis of the period put in the cadre of Adhyapak and not on the basis of existing pay scales. Again, an order has been issued on 22.8.2017, making a clarification to the circular dated 7.7.2017, mentioning that the directions issued in respect of promotion and Krammonnati would be applicable only after 1.1.2016. Again another circular dated 21.12.2017 has been issued, thereby clarifying the circulars dated 7.7.2017 and 22.8.2017. 3. Again, an order has been issued on 22.8.2017, making a clarification to the circular dated 7.7.2017, mentioning that the directions issued in respect of promotion and Krammonnati would be applicable only after 1.1.2016. Again another circular dated 21.12.2017 has been issued, thereby clarifying the circulars dated 7.7.2017 and 22.8.2017. 3. Challenging the circulars dated 7.7.2017, 22.8.2017 and 29.12.2017, it is submitted by the Counsel for the petitioners that initially the petitioners were appointed as Shiksha Karmi and thereafter, they were absorbed in the Adhyapak Cadre, and therefore, the benefit of 6th Pay Commission should have been given on the existing pay scale and not on the basis of the period of service rendered by them in Adhyapak Cadre. It is submitted that by order dated 30.6.2017, it was also directed by the School Education Department, that the services of the Shiksha Karmies after their absorption in the cadre of Adhyapak shall deemed to be in continuity. Therefore, the services rendered by the petitioner as Shiksha Karmi should be into consideration for the purposes of grant of benefit of recommendation of 6th pay commission. 4. Per contra, it is submitted by the Counsel for the State that as per Rules, 2008, the services rendered by the Petitioner on the post of Shiksha Karmi cannot be taken into consideration for the purposes of their salary and it is further submitted that the cut off date is the executive function of the State based on several factors like economic conditions, financial constraints, administrative and other circumstances therefore, unless and until the said cut off date leads to some blatantly capricious or outrageous result, the same cannot be quashed. To buttress his contentions, the Counsel for the State has relied upon the judgments passed by the Supreme Court in the case of Govt. of Andhra Pradesh and others v. N.Subbarayudu and others, reported in (2008)14 SCC 702 and Council of Scientific and Industrial Research and others v. Ramesh Chandra Agrawal and another, reported in (2009) 3 SCC 35. 5. Heard the learned Counsel for the parties. 6. of Andhra Pradesh and others v. N.Subbarayudu and others, reported in (2008)14 SCC 702 and Council of Scientific and Industrial Research and others v. Ramesh Chandra Agrawal and another, reported in (2009) 3 SCC 35. 5. Heard the learned Counsel for the parties. 6. The Co-ordinate Bench of this Court had an occasion to deal with the similar controversy and has decided a bunch of writ petition in analogous hearing along with W.P. No. 4043/2018 vide order dated 4.12.2019 and has held as under : Note appended to Schedule IV of Rules, 2008 (under Rule 2(b) and 4) reads as under : ''Note : After merging the Shiksha Karmies in Adhyapak Samvarg, the services rendered by them as Shiksha Karmi shall be calculated for purpose of Promotion/Karmonnati seniority only.'' Thus, it is clear that the services rendered by the petitioners as Shiksha Karmi can be calculated for the purpose of Promotion/Karmonnati seniority only. 7. Thus, it is clear that the past services of the petitioners, which they had rendered as Shikshakarmi is not to be taken into consideration for the purposes of fixation of pay. 8. The petitioners have filed the copy of their appointment order on the post of Shiksha Karmi. It is clear that they were appointed on the said post for a period of three years and their services were liable to be extended by further period of three years, after assessment of their work. Thus, it is clear that the petitioners were not appointed on the post of Shiksha Karmi on regular basis. 9. Therefore, this Court is of the considered opinion, that no fault can be found in the order dated 7.7.2017, by which it was directed that the recommendations of the 6th Pay Commission shall be payable on the basis of the period of service put in by the employee in the cadre of Adhyapak. 10. However, by order dated 7.7.2017, it has also been directed that the excess amount paid to the employees shall be recovered/adjusted. This Court is of the considered opinion, that if a wrong fixation of salary was done by the respondents, then the petitioners are not responsible for the same as incorrect order dated 15.10.2016 was issued by the respondents themselves. Therefore, it is directed that if any excess amount has been paid to the petitioners (who have not withdrawn their petition), then the same shall not be recovered. Therefore, it is directed that if any excess amount has been paid to the petitioners (who have not withdrawn their petition), then the same shall not be recovered. 11. The case of the petitioner is covered by aforesaid order and the same is not disputed by either of the parties. Therefore, this Court deems it appropriate to dispose of the present writ petition in the light of the directions issued in W.P. No. 4043/2018 order dated 4.12.2019. 12. With aforesaid observations, the writ petition is finally disposed of.