"10.1 That the Hon'ble court may please to call for the entire
records pertaining to the case of the petitioner.
2. The facts of the present case are as under:-
D) The petitioner was extended the benefit of Senior Pay Scale
vide order dated 01.01.2012, whereas he was entitled to
such benefit with effect from 06.07.2006 when such benefit
was extended to his Juniors.
E) It is the further case of the petitioner that after the conferment
of the Senior Pay Scale, Dr. Ashok Kumar Bansod and Dr.
Jaiprakash have been extended the Super Time Pay Scale
and Senior Super Time Pay Scale.
F) The petitioner made a representation and it was rejected vide
order dated 17.01.2018. The petitioner stood retired from
services on 31.01.2021 after completing 34 years of services.
G) It is further pleaded that the recruitment rules do not treat
Assistant Surgeons (Medical Officer and Dental Surgeon)
differently.
H) It is also stated that even in the Rules, 1990, there is no
discrimination between Medical Officers and Dental
Surgeons and both are in one and the same cadre.
I) Thus, the petitioner has claimed Senior Pay Scale from
06.07.2006 and the extension of subsequent benefits.
3. Mr. Pankaj Singh, learned counsel appearing for the petitioner would
argue that the petitioner served continuously from 1985 till 31.01.2021
in the post of Dental Surgeon. He would further submit that Medical
Officers, junior to the petitioner were extended the benefit of Senior
Pay Scale with effect from 06.07.2006 but the said benefit was
extended to the petitioner on 01.01.2012 without assigning sufficient
reasons. He would also submit that the petitioner made a
representation and it was rejected on 17.01.2018 thus, the action of the
respondents-State is arbitrary, violative of parity and contrary to the
explicit mandate of Rule 14 of the Rules, 1990. He would contend that
the Rules, 1990 create no distinction between the post of Assistant
Surgeon and Dental Surgeon and denial of pay benefits by the
respondents-State to the petitioner is discriminatory. In support thereof,
he placed reliance on the judgment passed by the Hon'ble Supreme
Court in the matter of L. Chandrakishore Singh Vs. State of Manipur
and Others reported in (1999) 8 SCC 287.
4. Mr. Pankaj Singh would further contend that arbitrary denial of pay
benefit to the petitioner not only violates the constitutional mandates
but also hurts the core fundamental rights of the petitioner. In that
regard, he placed reliance on the judgment passed by the Hon'ble
Supreme Court in the matter of State of Haryana and Others Vs.
Piara Singh and Others reported in (1992) 4 SCC 118. He would also
contend that Rule 14 of the Rules 1990 has an overriding effect over
Fundamental Rules or departmental guidelines.
5. On the other hand, Mr. Pramod Shrivastava, learned Deputy
Government Advocate appearing for the State/respondents would
oppose. It is argued by Mr. Pramod Shrivastava that the petitioner was
appointed as Assistant Dental Surgeon on 03.07.1985 and after
completing the probation period, his services were regularized on
10.06.1987. He would contend that the petitioner preferred WPS No.
6933/2006 which was disposed of vide order dated 24.10.2016,
whereby the petitioner was permitted to make a representation and
respondents No. 1 and 2 were directed to take a decision. He would
further submit that the representation of the petitioner was rejected
vide order dated 17.01.2018. It is also contended that vide order dated
01.04.2013 the department provided the IVth Level Pay Scale to the
Officers working with Medical and Dental Services. He would also
submit that according to the rules, after completion of 06 years of
services from 01.04.2013 Super Time Pay Scale would be payable. He
would further argue that according to the order issued by the Finance
Department dated 04.02.1990, the IIIrd Level Pay Scale has been
granted to the Officers working as Medical Experts, Medical Officers
and Dental Officers service cadre. He would also argue that the ratio to
provide benefit is 15:25:60 of the total sanctioned posts. He would
further contend that the petitioner became entitled to the Senior Pay
Scale after the determination of definite numbers of sanctioned posts
and the benefit was extended to the petitioner in the month of January,
2012. It is also contended that the petitioner became entitled to Senior
Time Pay Scale in the year 2018 after the completion of 06 years of
services from 01.04.2013. It is stated that the representation made by
the petitioner was rightly rejected by the respondents-State. It is further
stated that the petitioner has been extended the benefit of Super Time
Pay Scale with effect from 01.01.2018 vide order dated 05.12.2020 and
thus, the grievance of the petitioner has already been redressed. He
would also state that the petition deserves to be dismissed.
6. I have heard learned counsel for the parties and perused the
documents available on the record.
7. Admittedly, the petitioner was appointed to the post of Dental Surgeon
on 04.04.1985. His services were confirmed vide order dated
10.06.1987. The Service Rules i.e. Chhattisgarh Public Health and
Family Welfare (Gazette) Service Recruitment Rules, 1988 govern the
recruitment and other conditions of the service of the petitioner.
Schedule-III, Entry No. 5 deals with the required qualification for
Assistant Surgeon and Entry No. 7 deals with the eligibility criteria for
Dental Surgeon. The required qualification for Assistant
Surgeon/Medical Officer is MBBS or equivalent qualification, whereas,
for Dental Surgeon, it is BDS or equivalent qualification. Dr. Ashok
Kumar Bansod, Medical Officer and Dr. Jaiprakash Meshram, Medical
Officer were appointed on 18.07.1987 and 17.06.1987 respectively and
they were extended the benefit of Senior Pay Scale vide order dated
6.7.2006, but they have not been arrayed as respondents in the
present petition. The Madhya Pradesh Revision of Pay Rules, 1990
apply to all government servants. The Public Health Department is
mentioned in Serial No. 12 of Annexure-II appended to the Rules, Entry
No. 4 deals with Assistant Surgeon/Dental Surgeon and the same is
reproduced herein for reference:-
4. Assistant Surgeon/ Rs.1820-3300 Rs.2200-4000
Dental Surgeon (60% of posts)
Rs.3000-4500 On
(25% of posts) Completion of
6 years
service
8. A bare reading of this provision makes it clear that the initial Pay Scale
for Assistant Surgeons and Dental Surgeons was Rs.1820-3300 and
the Revised Pay Scale for 60% posts was Rs.2200-4000. It further
clarifies that after the completion of 06 years of services, the revised
pay scale of Assistant Surgeon/Dental Surgeon would be Rs.3000-
4500 and this benefit would be extended to 25% posts only. This Rule
further states that on completion of 04 years of service in senior grade,
15% of Doctors would be entitled to the Pay Scale of Rs.3700-5000.
9. A perusal of the gradation list annexed on page no. 24 of the writ
petition (Annexure- P/5) dated 06.07.2006 issued by respondent No.1
would reveal that Dental Surgeons were not included in the seniority
list and it was a gradation list of Medical Officers only.
10. According to the Pay Revision Rules, Serial No. 12 of Annexure-II, the
gradation list was required to be prepared including Dental Surgeons to
extend the three-level benefits as per the ratio fixed but it was not done
properly. Thus, it can safely be held that the benefit of the revised pay
scale, the benefit of the pay scale after completion of 06 years of
service and the benefit of Senior Grade were not extended to any of
the Dental Surgeons.
11. During the course of the hearing, the Commissioner-cum-Director of
Health Services, State of Chhattisgarh was called to assist the Court,
who stated that the benefit could not be extended to the petitioner with
effect from 06.07.2006 as the petitioner was not within the zone of
consideration. The reasoning given by the Officer appears to be
contrary to the Rules, 1990.
12. The Hon'ble Supreme Court in the matter of L. Chandrakishore Singh
(supra) held that when the rules are clear and do not create any doubt,
the adoption of a contrary practice cannot be made a basis for
depriving the employees in the service of their entitlement. The
relevant Para-12 is reproduced herein below:-
"12. The reliance of the learned counsel for the
respondents upon the judgment in Baleshwar Dass
v. State of U.P., (1980) 4 SCC 226, does not in any
way advance the case of his clients inasmuch as in
that case the Court considered the scope of United
Provinces Services of Engineers Class II, Irrigation
Branch Rules, 1936 and by specific reference to
Rules 3(b) and 4 held that a cadre post can be
permanent or temporary and if an Engineer is
appointed substantively to a temporary or
permanent post he becomes a member of the
service. The touchstone then is the substantive
capacity of the appointment. The Court further held
that the substantive capacity refers to the capacity
in which a person holds the post and not
necessarily to the nature or character of the post.
Even appointment to a temporary post for a long
duration would be sufficient to hold that such
person was holding the post in substantive
capacity. A person shall be held to be holding a
post in a substantive capacity when he is found to
be not holding the post for a definite period. The
Court observed: (SCC p. 243, para 31)
"To approximate to the official diction used in
this connection, we may well say that a
person is said to hold a post in a substantive
capacity when he holds it for an indefinite
period especially of long duration in
contradistinction to a person who holds it for a
definite or temporary period or holds it on
probation subject to confirmation."
The Respondent State has submitted that since the
enforcement of the MPS Rules in 1965, the State
Government has been construing the words
"substantively borne on the cadre of the Inspector
of Police" appearing in Rule 5(1)(b) as confirmed
Inspector of Police and till an Inspector of Police of
probationary period is not confirmed to the post he
has not been considered for promotion to MPS
Grade-II on regular basis. It is contended that
under this consistent practice for about 34 years,
the State Government has been considering only
the cases of the confirmed Inspectors of Police for
promotion to MPS Grade-II on regular basis as the
policy of the State Government is to promote only
the confirmed Inspectors of Police and not promote
the probationary Inspectors of Police. It is
contended that in the light of the judgment of this
Court in N. Suresh Nathan v. Union of India, 1992
Supp. (1) SCC 584, such a practice should be held
to be in consonance with the long-standing practice
in the Department. We feel the reliance on this
case is also misplaced. In that case the dispute
was whether a diploma-holder Junior Engineer who
obtained the degree while in service became
eligible for appointment as an Assistant Engineer
by promotion on completion of three years of
service including therein the period of service prior
to obtaining the degree or the three years' service
as a degree-holder for the purpose to be reckoned
from the date of obtaining the degree. The
diploma-holders contended that they were entitled
to include the earlier period and were eligible for
promotion in the category on obtaining a degree if
the total period of service is three years inclusive of
earlier period. The degree-holders contested this
position and contended to the contrary. According
to the degree-holders these were two distinct
categories, the first being of degree-holders with
three years' service in the grade as degree-
holders, the period of three years being
subsequent to the date of obtaining the degree as
in the case of Junior Engineers who joined the
service with a degree, and the other category was
of diploma- holders with six years' experience. The
diploma-holders went to the Central Administrative
Tribunal and their contention was accepted. In
appeal the order of the Tribunal was set side
mainly on the ground that there existed sufficient
material including the admission of the diploma-
holders that the practice followed in the
Department for a long time was that in case of
diploma-holder Junior Engineers who had obtained
the degree during service, the period of three
years' service in the grade for eligibility for
promotion as degree- holders commenced from the
date of obtaining the degree and the earlier period
of service as diploma-holders was not counted for
that purpose. The Union Public Service
Commission was found to be having similar view.
The Court held that if the past practice was based
on one of the possible constructions which could
be made under the rules, then upsetting the same
at a later stage was not appropriate. After referring
to Rules 7 and 11 of the recruitment rules, the
Court found: (SCC p. 587, para 5)
"The entire scheme, therefore, does indicate
that the period of three years' service in the
grade required for degree-holders according
to Rule 11 as the qualification for promotion in
that category must mean three years' service
in the grade as a degree-holder and,
therefore, that period of three years can
commence only from the date of obtaining the
degree and not earlier. The service in the
grade as a diploma-holder prior to obtaining
the degree cannot be counted as service in
the grade with a degree for the purpose of
three years' service as a degree-holder. The
only question before us is of the construction
of the provision and not of the validity thereof
and, therefore, we are only required to
construe the meaning of the provision. In our
opinion, the contention of the appellant
degree-holders that the rules must be
construed to mean that the three years'
service in the grade of a degree-holder for the
purpose of Rule 11 is three years from the
date of obtaining the degree is quite tenable
and commends to us being in conformity with
the past practice followed consistently."
The position in the instant case is totally different.
After the judgment in Bhatia case, (1995) 2 SCC
48, we are of the opinion that no other construction
of the rules is possible. When the Rules are clear
and do not create any doubt, the adoption of a
contrary practice cannot be made a basis for
depriving the employees in the service of their
entitlement under the rules which are clear, specific
and unambiguous."
13. In the matter of Piara Singh (supra), the Hon'ble Supreme Court has
held that the Executive must act fairly and provide fair deal to its
employees consistent with the requirements of Articles 14 and 16 of
the Constitution of India. The relevant Para-21 is reproduced herein
below:-
"21. Ordinarily speaking, the creation and
abolition of a post is the prerogative of the
Executive. It is the Executive again that lays down
the conditions of service subject, of course, to a
law made the appropriate legislature. This power to
prescribe the conditions of service can be
exercised either by making rules under the proviso
to Article 309 of the Constitution or (in the absence
of such rules) by issuing rules/instructions in
exercise of its executive power. The court comes
into the picture only to ensure observance of
fundamental rights, statutory provisions, rules and
other instructions, if any, governing the conditions
of service. The main concern of the court in such
matters is to ensure the rule of law and to see that
the Executive acts fairly and gives a fair deal to its
employees consistent with the requirements of
Articles 14 and 16. It also means that the State
should not exploit its employees nor should it seek
to take advantage of the helplessness and misery
of either the unemployed persons or the
employees, as the case may be. As is often said,
the State must be a model employer. It is for this
reason, it is held that equal pay must be given for
equal work, which is indeed one of the directive
principles of the Constitution. It is for this very
reason it is held that a person should not be kept in
a temporary or ad hoc status for long. Where a
temporary or ad hoc appointment is continued for
long the court presumes that there is need and
warrant for a regular post and accordingly directs
regularisation. While all the situations in which the
court may act to ensure fairness cannot be detailed
here, it is sufficient to indicate that the guiding
principles are the ones stated above. The
principles relevant in this behalf are stated by this
Court in several decisions, of which it would be
sufficient to mention two decisions having a
bearing upon the issue involved here. They are
Dharwad Distt. P.W.D. Literature Daily Wage
Employees Association v. State of Karnataka,
(1990) 2 SCC 396 and Jacob M. Puthuparambil v.
Kerala Water Authority, (1991) 1 SCC 28. In the
first case, it was alleged that about 50,000 persons
were being employed on daily-rated or on monthly-
rated basis over a period of 15 to 20 years, without
regularising them. It was contended that the very
fact that they are continued over such a long period
is itself proof of the fact that there is regular need
for such employment. In that view of the matter,
following directions were given, after reviewing the
earlier decisions of this Court elaborately: (SCC p.
408, para 23)
"2. From amongst the casual and daily
rated employees who have completed ten
years of service by December 31, 1989,
18,600 shall immediately be regularised with
effect from January 1, 1990 on the basis of
seniority-cum-suitability.
There shall be no examination but
physical infirmity shall mainly be the test of
suitability.
3. The remaining monthly rated
employees covered by the paragraph 1 who
have completed ten years of service as on
December 31, 1989 shall be regularised
before December 31,1990, in a phased
manner on the basis of seniority-cum-
suitability, suitability being understood in the
same way as above.
4. The balance of casual or daily
rated employees who become entitled to
absorption on the basis of completing ten
years of service shall be absorbed/regularised
in a phased manner on the same principle as
above on or before December 31,1997.
5. At the point of regularisation,
credit shall be given for every unit of five
years of service in excess of ten years and
one additional increment in the time scale of
pay shall be allowed by way of weightage.
There was a direction that the claims on
other heads would be considered at the time
of final disposal. We have come to the
conclusion that apart from these reliefs no
other would be admissible."
14. Taking into consideration the fact that:-
I. The name of the petitioner or any Dental Surgeon was not
included in the seniority list dated 06.07.2006;
II. Dr. Ashok Kumar Bansod and Dr. Jaiprakash Meshram, who
were at Serial No. 207 and 210 in the gradation list, were
extended the benefit of the Senior Pay Scale on 06.07.2006 and
admittedly they were Juniors to the petitioner;
III. Serial No. 12 of Annexure-II of the Rules, 1990 does not provide
for special treatment to Assistant Surgeons ignoring Dental
Surgeons and they are in the same position;
IV. The respondents could not bring out any justifiable reason for
the denial of the Senior Pay Scale to the petitioner with effect
from 06.07.2006;
V. Thus, the act of the respondents appears to be arbitrary,
discriminatory and violative of Articles 14 and 16 of the
Constitution of India.
Therefore, the order Annexure P/1 dated 17.01.2018 passed
by respondent No. 2 is hereby quashed. The respondent authorities
are directed to provide the benefit of the Senior Pay Scale to the
petitioner with effect from 06.07.2006 and are further directed to
provide other benefits accordingly.
15. Consequently, the petition stands allowed. No Costs.
Sd/-
(Rakesh Mohan Pandey)
Judge
vatti
