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Madhya Pradesh High Court · body

2021 DIGILAW 324 (MP)

Veena Verma v. State of M. P.

2021-03-09

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of learned counsel for the parties, the matter is finally heard. 1. Being aggrieved by the order dated 9.8.2016 Annexure P/1, 22.4.2017 Annexure P/2, 15.5.2017 Annexure P/3 and 27.5.2017 Annexure P/4, whereby the benefits of second and third time pay scale granted to the petitioner has been cancelled and consequently the recovery to the tune of Rs. 2,24,577/- has also been made from the petitioner, which is reflected from the PPO order Annexure P/5. The aforesaid action is being taken without providing any opportunity of hearing to the petitioner. 2. It is argued that the petitioner was initially appointed as Asstt. Grade III on 31.3.1981 and she was extended the benefit of second time pay scale with effect from 1.4.2007 vide order dated 12.11.2011 and third time pay scale with effect from 1.7.2014 vide order dated 21.5.2015 and after completion of service and on attaining the age of superannuation she stood retired on 30.4.2017. It is argued that the services of the petitioner has governed by Madhya Pradesh Class III (Ministerial) Forest Services Recruitment Rules 2000 has amended from time to time. A promotion channel of petitioner is Asstt. Grade II thereafter Accountant/Establishment Clerk and promotion on the post of Accountant only for those persons who have passed the accounts exam as per Rule 15(1)(b). The aforesaid aspect was came before this Court in the case of Dinesh Kumar Garg and others Vs. State of M.P. and others (W.P. No. 1997/2017 decided on 13.2.2020), wherein this Court has held that a person seeking promotion on the post of Establishment Clerk is not required to pass the Account Examination. The same will only be compulsory for a person working on the post and claiming promotion on the post of Accountant. In another case in Anil Kumar Sharma Vs. State of M.P. and others (W.P. No. 5737/2018 (s) decided on 4.2.2020) the similar controversy has cropped up before this Court and again the Court has taken a similar view. 3. The same will only be compulsory for a person working on the post and claiming promotion on the post of Accountant. In another case in Anil Kumar Sharma Vs. State of M.P. and others (W.P. No. 5737/2018 (s) decided on 4.2.2020) the similar controversy has cropped up before this Court and again the Court has taken a similar view. 3. It is pointed out that the State Government has enforced the scheme known as Krammonati Scheme and the circular dated 24.1.2008 issued by the Ministry of Finance by the name and order of the Governor granting assured career progression, time scale of pay to the employees of Cader C, who have completed 10 years of service on direct recruitment post and on completion of 20 years of service for Second Higher Pay Scale. Another circular was issued on 30.9.2014 and expanded the provisions of earlier circular and provided that every employee entitled to third time pay scale on completion of 30 years of service. At the verge of retirement of the petitioner, the respondent no. 2 has passed an order, whereby directed the Divisional Forest Officer to cancel the benefit of Third Time Pay Scale on the ground of non passing of Account examination and the order was passed cancelling the benefit of Third Time Bound Scale extended to the petitioner and thereafter the recovery was also made which is reflected from PPO order after the retirement of the petitioner. The Rules governing the entitlement of an employee for grant of time scale benefits provides that the same has to be extended to an employee in the manner in which the promotion is to be accessed. Only the ACRs of preceding years are required to be seen as per the promotion prospects. The law is already settled as per the promotion for the post of Establishment Clerk is concerned that they are not required to pass the Account Examination. Thus, the petitioner on completion of 30 years of service was rightly extended the benefit of Third Time Bound Scale and the illegality has been committed by the respondents in recovering the benefits. Even in the case of State of Punjab Vs. Thus, the petitioner on completion of 30 years of service was rightly extended the benefit of Third Time Bound Scale and the illegality has been committed by the respondents in recovering the benefits. Even in the case of State of Punjab Vs. Rafiq Masih (white washers) 2015(4) SCC 334 after the retirement of an employee no recovery can be made without the permission of the Governor as the Governor is having the right to direct for withholding of pension or pensionary benefits. The aforesaid aspect was considered by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein it is held as under: "18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employees, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." Thus, the impugned order are unsustainable deserves to be set aside. 4. Counsel for the petitioner has brought to the notice of this Court the orders of similarly situated employees, who have been extended the benefits after the orders passed by this Court. There is hostile discrimination being committed with the petitioner. 4. Counsel for the petitioner has brought to the notice of this Court the orders of similarly situated employees, who have been extended the benefits after the orders passed by this Court. There is hostile discrimination being committed with the petitioner. The order dated 25.2.2015 has been filed along with the list of documents pointing out the fact that the DPC convened on 5.2.2015 has considered the cases of employees on completion of 30 years of service for grant of third time pay scale. 5. It is argued that in reply the respondent/State has only pointed out the fact that as there were no sanctioned post available in the department, therefore, the petitioner was not entitled for grant of the benefits, but the fact remains that the only requirement which is required to be seen is that the petitioner is fulfilling the criteria for promotion to enable her to extend the benefit of Krammonati Scheme. It is further pointed out in the return that the petitioner is not entitled for promotion in terms of the Recruitment Rules of 2000, therefore, no benefit could have been extended and in terms of the undertaking submitted by the petitioner before the Department the recovery was rightly made from the petitioner. 6. By way of filing the rejoinder the counsel for the petitioner has brought to the notice of this Court that in similar circumstances the recovery orders were put to challenge before this Court, Bench at Indore an order Annexure P/13 in the case of Anil Kumar Sharma (supra) was passed and the recovery was quashed and the petitioners were found entitled for grant of benefits. The Division Bench of this Court in the case of State of M.P. vs. Chandrashwar Prasad Singh (W.A. No. 1232/2017 decided on 15.12.2017) has considered the aspect of giving an undertaking by an employee and vide order dated 15.12.2017 has held that "since the employee has no option but to give undertaking so as to avail the benefit of pay-fixation, it cannot be said to be voluntary act thus, such undertaking cannot be made basis for sustaining the recovery and accordingly the recovery order was quashed." Thus, the order impugned passed by the authorities is perse illegal and contrary to the settled legal preposition and highly discriminatory as far as the petitioner is concerned. 7. 7. Per contra counsel for the State by filing the return has denied all the contentions and has argued that the petitioner was not entitled for promotion as per the Promotional Rules of 2000. She was initially appointed on Asstt. Grade III on 31.3.1981 and subsequently on 12.11.2011 the benefit of Second Time Bound Scale was extended to the petitioner with effect from 1.4.2007. The condition of passing of Accounts examination to the next higher post as per Rule 15(1)(b) was to pass Account Training which was compulsory requirement and the petitioner has not possessed the aforesaid qualification, therefore, she was not entitled for promotion. The benefits was wrongly extended to the petitioner and the wrong committed by mistake was rectified by passing impugned orders. No illegality in the order passed by the Authority. He has prayed for dismissal of the petition. 8. Heard the learned counsel for the parties and perused the record. 9. From perusal of the record, it is not disputed that the petitioner was appointed as Asstt. Grade III on 31.3.1981 and she was extended the Second Time Pay Scale vide order dated 12.11.2011 with effect from 1.4.2007 in the pay scale of Rs. 5200-20200/- Grade Pay of Rs. 2800/- thereafter the Third Time Pay scale was granted to the petitioner vide order dated 21.5.2015 with effect from 1.7.2014 in the pay scale of Rs. 9300-34800/- Grade Pay Rs. 3200/-. On completion of the service she attained the age of superannuation and stood retired on 30.4.2017. 10. The question with respect to grant of pay scale benefits to the post of Establishment Clerk and the Accountant came before this Court and considered in the case of Dinesh Kumar Garg (supra) and this Court has held as under: "9. From perusal of the record, it is seen that petitioners were initially appointed as Assistant Grade III on their dates of appointments. The State Government has issued a circular dated 12.02.2015 (Annexure P/6), in which it is clarified that the employees, who have completed 30 years of services as on dated 01.07.2014, are entitled to third time scale. 10. From perusal of the record, it is seen that petitioners were initially appointed as Assistant Grade III on their dates of appointments. The State Government has issued a circular dated 12.02.2015 (Annexure P/6), in which it is clarified that the employees, who have completed 30 years of services as on dated 01.07.2014, are entitled to third time scale. 10. At this Stage, learned counsel for State has fairly submitted that the matter of the petitioners have not been considered for the post of Establishment Clerk and will be reconsidered for extension of benefit with respect to post of Establishment Clerk and submits that the petitioners may file a representation to the aforesaid effect. 11. Considering the overall facts and circumstances of the case and the fact that there is no clarification/consideration regarding the post of Establishment Clerk in the impugned order itself by the respondents while rejecting the claim of the petitioners, this Court deems it appropriate to allow the writ petition setting aside the orders impugned dated 09.08.2016 (Annexure P/1) and 17.02.2017 (Annexure P/2) and the matter deserves to be and is relegated to the authority for reconsideration of the case of the petitioners with respect to post of Establishment Clerk. Petitioners be provided opportunity of hearing and are free to file necessary documents. There can be no recovery from the petitioners in view of the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (Supra)." 11. Even in the case of Anil Kumar Sharma (supra) the Court has considered the similar aspect and held as under: "7. From perusal of the records, it reveals that the petitioner is working on the post of Assistant Grade-II at the time of grant of Second and third time bound pay scale, but he is working on the post of Assistant Grade-III and next promotional post is the post of Assistant Grade-II and next to Accountant/Establishment Clerk, for which, eligibility criteria is five years and three years' experience. The petitioner fulfills the said eligibility criteria and therefore, the screening Committee, vide order dated 16.12.2014 and 23.1.2016 has granted the benefit of second time bound pay scale to the petitioner w.e.f. 1.4.2006 and the second time bound scale from 1.4.2014. It is also to be noted that the said benefit has been withdrawn vide the impugned orders." 12. The petitioner fulfills the said eligibility criteria and therefore, the screening Committee, vide order dated 16.12.2014 and 23.1.2016 has granted the benefit of second time bound pay scale to the petitioner w.e.f. 1.4.2006 and the second time bound scale from 1.4.2014. It is also to be noted that the said benefit has been withdrawn vide the impugned orders." 12. Thus, the controversy with respect to entitlement of Establishment Clerk is decided by this Court and is settled. Thus, the only criteria for granting the benefit of Third Time Bound Scale was to consider the case of the petitioner as per the promotional criteria. The petitioner has fulfilling the promotional criteria, therefore, she was found entitled by the DPC. The similarly situated employees have already extended the benefits of Third Time Bound Pay Scale in the DPC meeting held on 5.2.2015 vide order dated 25.2.2015, which is filed along with the list of documents which clearly reflects that on completion of 30 years of service the time scale pay has been extended to similarly situated employees. In such circumstances as far as undertaking given by the employee is concerned the matter stood concluded and settled by the Division Bench in the case of State of M.P. Vs. Chandrashwar Prasad Singh (supra) and the Division Bench has held as under: "We find that the said judgment relied upon by learned counsel for the State has no applicability in the facts of the present case as the undertaking itself is unconscionable writing obtained by the State. The employee has no option but to submit undertaking to avail the benefit of pay-fixation. In a judgment of the Supreme Court reported as (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another), a condition in the appointment letter that the Corporation could terminate the services of the employees without prior notice if it was satisfied that the employee was unfit medically or was guilty of any subordination in respect of other misconduct, was found to be illegal. The Supreme Court held as under:- "68. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is "the State" within the meaning of the expression in Article 12, is void as being violative of Article 14. The Supreme Court held as under:- "68. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is "the State" within the meaning of the expression in Article 12, is void as being violative of Article 14. What is challenged under this head is clause (i) of Rule 9 of the said Rules. This challenge levelled by the Respondent in each of these two Appeals succeeded in the High Court. xxx xxx 78. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another. xxx xxx 93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay [(1974) 1 WLR 1308], however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others v. Prahlad Rai and others, [1960] 1 S.C.R. 861 reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873): "The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail." The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void." In view of the aforesaid judgment, we find that since the employee has no option but to give undertaking so as to avail the benefit of pay-fixation, it cannot be said to be voluntary act thus, such undertaking cannot be made basis for sustaining the recovery of Rs. 87,354/-. 13. Thus, merely submitting an undertaking by an employee to claim the benefit does not entitled the authorities to make an recovery on the basis of an undertaking. The petitioners have already retired after attaining the age of superannuation on 30.4.2017. In such circumstances, recovery from a retired employee i.e. Class III employee is not permissible as has been held by the Supreme Court in the case of Rafiq Masih (supra). Thus, considering the overall facts and circumstances of the case the order impugned are unsustainable and are hereby quashed. The authorities are directed to refund the amount recovered from the petitioner along with an interest of 6% from the date of recovery within a period of one month. They are directed to consider the case of the petitioner for revised pension and issue a revised PPO within a period of two months from the date of receipt of certified copy of this order. 14. Accordingly, the petition filed by the petitioner is disposed of. They are directed to consider the case of the petitioner for revised pension and issue a revised PPO within a period of two months from the date of receipt of certified copy of this order. 14. Accordingly, the petition filed by the petitioner is disposed of. E-copy/Certified copy as per rules/directions.