Judgment:
HIGH COURT OF MADHYA PRADESH : JABALPUR. Writ Petition No.9936/2009 Narendra Pratap Singh Vs. State of M.P. and others PRESENT : Hon’ble Shri Justice K.K. Trivedi. J.
Ms. Malti Dadariya, learned counsel for the petitioner. Shri Rajesh Tiwari, learned Government Advocate for respondents. ORDER
(08.10.2013) The grievance of the petitioner in this petition is that he has completed 33 years of qualifying service, but the same is not being counted for the purposes of grant of pensionary benefits to the petitioner nor revision of pay of the petitioner has been done in appropriate manner, therefore, he is required to approach this Court by way of filing the present petition. It is contended that initially the petitioner was selected for his appointment as a Deputy Teacher and an order of appointment was issued on 9.11.1973. Pursuant to the said order, the petitioner gave his joining, which was accepted. The petitioner discharged his duties continuously, but was paid a fixed salary of Rs.100/- per month. Later on, the petitioner was given the benefit of regularization, but not with retrospective effect, which has resulted in not granting him the benefit of kramonnati pay scale timely. This is how the petitioner was put to financial loss while he was in service. After the retirement, the petitioner's salary has not been revised properly. As a result, he has suffered financial loss in the matter of grant of retiral dues. A legal notice was issued by the petitioner through his counsel, but no steps have been taken by 2 the respondents. Therefore, the present writ petition was required to be filed. In view of these submissions, the petitioner has claimed the following relief:- (i) Hon'ble Court may kindly be pleased to direct the respondents to produce the record related to the appointment and service book of the petitioner and respondent No.6. (ii) Hon'ble Courtmay kindly be pleased to hold that the service rendered by the petitioner w.e.f. 16.11.1973 is liable to be counted for all purposes directing the respondents to grant the kramonnati higher scale of pay under the scale of pay Rs.5000-8000/- w.e.f. 01/01/1086 giving its arrears with interest @ of 10% p.a. and second second higher scale of pay Rs.5500/- 9000/- be sanctioned w.e.f. 01/01/1998 giving its arrears @ of 10% p.a. (iii)That, the respondents be further directed to count the service of the petitioner w.e.f. 16/11/1973 for the purpose of calculating the pension, gratuity and leave encashment revising the same accordingly giving its arrears along with interest @ of 10% p.a. thereon. (iv)The respondents be directed to give the regular scale of pay w.e.f. 16/11/1973 making fixation accordingly giving its arrears along with interest @ 10% p.a. (v) Any other order/direction as deemed fit and proper may also be passed.
2. Upon issuance of notice of the writ petition, a return has been filed by the respondents and they have contended that in fact the persons like petitioner were not entitled to grant of such a benefit of counting of previous service rendered by them on fixed salary. One such order issued in respect of a person, who was similarly situated like the petitioner, has already been 3 withdrawn and therefore, the petitioner cannot claim benefit of fixation of salary from day one. It is contended that since the appointment of the petitioner as Up Shikshak was later on regularized on a pensionable post, the petitioner would be entitled to the benefit from the date of regularization and not otherwise. It is thus contended that the petition is liable to be dismissed.
3. After hearing learned counsel for the parties at length and perusing the record it is clear that the respondents are not aware of the statutory provisions of rules. In fact there was no such post of Up Shikshak or Deputy Teacher sanctioned within the establishment of School Education Department of Government of M.P. Even when the M.P. Education Department (Class-3 Teaching Cadre) Rules, 1973 were framed, the post of Up Shikshak was not included in the said rules. However, looking to the need of the primary schools in rural areas, certain schools were opened and for teaching in the said schools, teachers were appointed. Those teachers were appointed on a fixed salary, and since they were not granted the regular pay scale, many of such teachers approached the M.P. Administrative Tribunal by way of filing O.A. No.2745/1989 (Madhukant Yadu vs. State of Madhya Pradesh) which was decided decided on 24.8.1992. The original application was allowed and it was held that since such teachers were appointed to teach in the school they would be entitled to the pay scale prescribed for the post of Assistant Teacher. The State Government challenged the said order of Tribunal by filing SLP before the Apex Court, which was registered as SLP No.6892/1993, but the same was dismissed on 3.1.1999. This order of the Tribunal was made applicable in many of the cases filed before this Court and in one of the writ petitions, while granting the benefit of fixation of pay in the prescribed pay scale, this Court has refused to grant the arrears of salary. Such an order was called in question in W.A. 4 No.346/2008 (Smt. Usha Ranawat Vs. State of M.P. and others). The said matter was decided by the Division Bench of this Court on 18.12.2008. It was categorically directed that the benefit of pay in the regular pay scale from the initial date of appointment shall be made to the persons like petitioner/appellant in the said case. The State Government's writ appeal against the very same decision was dismissed. The said finding recorded in paragraph-19 of the decision reads thus:
“19. In view of the foregoing discussion, the appeal filed by writ petitioners succeeds and is allowed whereas writ appeals filed by the State are dismissed in limine. Impugned order of Single Bench is modified to the extent that appellant (writ petitioner) in addition to all benefits awarded by the Single Judge in the impugned order would also be entitled to claim arrears of his salary from the date of his initial appointment. In other words, the appellant will be entitled to claim the benefit of his pay fixation i.e. regular pay scale from the date of his initial appointment. Let the calculation be made by respondents in the light of appellant’s date of initial appointment and accordingly, the arrears payable to appellant towards his salary be paid to him/her in each case, which are subject matter of these appeals within a period of 6 months from the date of this order.”. 4. The issue in respect of grant of such a benefit was considered again by this Court in various writ petitions. Making application of the law laid down by the Apex Court that parity in respect of identical claim be maintained, it was held by this Court that all those who have been appointed on fixed salary would be entitled to grant of salary in the regular pay scale from day one of their initial appointment. This issue is no longer res integra.
5. Now the question is whether the appropriate orders were passed in respect of petitioner herein or not. It is clear that petitioner was selected and appointed on the post of Deputy Teacher, which post is in fact nothing but a teaching post in the School Education Department and is pensionable post. After the law was already settled by this Court and by the M.P. 5 Administrative Tribunal long back, it was necessary for the respondents to make application of such law in respect of the petitioner as well. He was not required to run from pillar to post for claiming the very same benefit which was already extended by this Court, by the Tribunal and which orders were alrady afirmed by the Apex Court. It appears that only because of this inaction on the part of the respondents, the services of the petitioner were not counted and in fact counting the period of service after his regularization, the benefit of kramonnati pay scale was made applicable to him. In terms of the kramonnati, pay scale scheme by the State Government, on completion of 12 years of service on one post from the initial date of appointment, the petitioner would have become entitled to grant of next higher pay scale in the year 1985. In stead of granting such a benefit, erroneously the said benefit was extended to the petitioner with effect from the year 1996. When the subsequent kramonnati pay scale scheme was made, again it was reiterated by the State Government that all those who have stagnated on one post continuously for a period of 24 years would be given the second benefit of kramonnati and that would have been extended to the petitioner from the cut of date. Since this was not done, in fact there was an error committed by the respondents in not regularizing the pay of the petitioner in appropriate manner. In view of the law well sttled, this has to be done by the respondents.
6. Now the question would be whether the petitioner would be entitled to get the benefit of pension, counting the period of service rendered by him as Up Shikshak. As has been pointed out hereinabove, the post on which the petitioner was initially appointed was in fact the post of Assistant Teacher. The Tribunal and this Court has accepted such a stand of the persons like petitioner on earlier occasions and that is why the Tribunal as well as this Court has directed to make payment of salary in the 6 regular pay scale of the post of Assistant Teacher to such teachers who were initially appointed on the fixed salary. If a scale of pay is provided or is directed to be given to a particular post, naturally the post become pensionable. At any rate, since the petitioner has discharged function as a teacher from day one of appointment, he is entitled to get the benefit of counting of the said period for the purpose of his pension. In fact this is the specific provisions made under the Civil Services (Pension) Rules, 1976. There is no justification shown by the respondents as to how and why this period was not to be counted for the purpose of fixing the pension and retiral dues of the petitioner. If such a benefit is not extended to the petitioner, it would be violative of Articles 14 and 16 of the Constitution of India.
7. Consequently, the writ petition is allowed. The respondents are directed to treat the period of service of the petitioner w.e.f. 16.11.1973 to 19.9.1984 as services rendered on a pensionable post after releasing regular pay scale of the post of Assistant Teacher to the petitioner from the date of his initial appointment. The salary of the petitioner be accordingly revised. All the arrears be calculated and be paid to the petitioner within a period of four months. The respondents will further calculate the period of service of the petitioner for the purposes of grant of benefit of kramonnati higher pay scale on completion of 12 and 24 years of service in the prescribed pay scale, calculate all the arrears of salary after revision of his pay in the aforesaid pay scales and will pay the same to the petitioner within the aforesaid period. The petitioner would also be entitled to get his pensionary benefits calculated treating the period as aforesaid as regular pensionable services rendered by him and all retiral dues including pension and gratuity be refixed and revised and all arrears be paid to the petitioner within the aforesaid period.
8. It is made clear that in case this order is not complied with 7 and the payment as directed herein above is not made to the petitioner within time stipulated, the interest @ 8% per annum on the arrears of dues would be leviable on the respondents from the date of retirement of the petitioner till the actual date of payment.
9. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs. (K.K. TRIVEDI) Judge shukla 8 HIGH COURT OF MADHYA PRADESH : JABALPUR. Writ Petition No.Vs ORDER
Post it for /09/2013 (K. K. Trivedi) Judge