Madhya Pradesh High Court

Sandeep Kumar Shukla vs The State Of Madhya Pradesh on 27 October, 2022

Author: Maninder S. Bhatti

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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 27th OF OCTOBER, 2022

WRIT PETITION No. 2784 of 2012

BETWEEN:-
SANDEEP KUMAR SHUKLA S/O SHRI LAXMI
NARAYAN SHUKLA, AGED ABOUT 41 YEARS,
OCCUPATION: SHIKSHA KARMI GRADE 3
SHRINATH HS.SCHOOL CHHINDWARA
(MADHYA PRADESH)

.....PETITIONER
(BY SHRI K.C. GHIDIYAL, SENIOR ADVOCATE ASSISTED WITH
SHRI PRADEEP KUMAR DWIVEDI, ADVOCATE)

AND
1. THE STATE OF MADHYA PRADESH TH.
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)

2. COMMISSIONER PUBLIC INSTRUCTIONS
DISTT.BHOPAL (MADHYA PRADESH)

3. DISTRICT EDUCATION OFFICER
DISTT.CHHINDWARA (MADHYA PRADESH)

4. REGISTRAR MAHARASTRA MANDAL BADBAN
DISTT.CHHINDWARA (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI SWAPNIL GANGULI, DEPUTY ADVOCATE GENERAL)

REVIEW PETITION No. 666 of 2022

BETWEEN:-
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)

2. THE PRINCIPAL SECRETARY FINANCE
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 11/2/2022
2:28:56 PM
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D EPARTM EN T VALLABH BHAWAN BHOPAL
M.P. (MADHYA PRADESH)

3. COMMISSIONER PUBLIC INSTRUCTIONS
DISTRICT BHOPAL M.P. (MADHYA PRADESH)

4. DISTRICT EDUCATION OFFICER SCHOOL
EDUCATION DEPARTMENT DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

.....PETITIONER
(BY SHRI SWAPNIL GANGULY, DEPUTY ADVOCATE GENERAL)

AND
1. RAVINDRA KHODE S/O ANNAJI KHODE
OCCUPATION: SHIKSHA KARMI GRADE 3
RAMRAO DHARMADHIKARI HIGHER
SECONDARY SCHOOL PANDURNA (MADHYA
PRADESH)

2. SMT. SANGEETA W/O SHRI SANJAY JAGTAP
OCCUPATION: SHIKSHA KARMI GRADE 3
RAMRAO DHARMADHIKARI HIGHER
SECONDARY SCHOOL PANDURNA DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

3. VISHWANATH S/O HARE SINGH ERPACHI
OCCUPATION: SHIKSHA KARMI GRADE 3
RAMRAO DHARMADHIKARI HIGHER
SECONDARY SCHOOL PANDURNA DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

4. SHIMON W/O SHRI SHIV PRASAD SAHU
OCCUPATION: SHIKSHA KARMI GRADE III
MISSION PRIMARY SCHOOL SEJA TEHSIL
AMARWARA DISTRICT CHHINDWARA M.P.
(MADHYA PRADESH)

5. SMT. ZAINI DOYEL W/O SHRI JAMES DOYEL
OCCUPATION: SHIKSHA KARMI GRADE III ST.
JOSEPH, PRIMARY SCHOOL DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

6. SMT. MANJU CHATURVEDI W/O SHRI ASHOK
CHATURVEDI OCCUPATION: SHIKSHA KARMI
GRADE III ST. JOSEPH, PRIMARY SCHOOL
DISTRICT CHHINDWARA M.P. (MADHYA
PRADESH)

7. KUMARI REENA PAUL D/O LATE SHRI GC PAUL
Signature Not Verified
Signed by: ASTHA SEN
Signing time: 11/2/2022
2:28:56 PM
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OCCUPATION: SHIKSHA KARMI GRADE III
DENIAL HIGHER SECONDARY SCHOOL
DISTRICT CHHINDWARA M.P. (MADHYA
PRADESH)
8. SMT. PRERNA KHIRWARKAR W/O PRAMOD
KHIRWARKAR OCCUPATION: SHIKSHA KARMI
GRADE III SHRINATH HIGHER SECONDARY
SCHOOL DISTRICT CHHINDWARA M.P.
(MADHYA PRADESH)

9. R.D. HIGHER SECONDARY SCHOOL PANDURNA
THROUGH ITS MANAGER DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

10. ST. JOSEPHS PRIMARY SCHOOL THROUGH ITS
M AN AGER NEAR POLICE LINES DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

11. DANIYALSAN HIGHER SECONDARY SCHOOL
THROUGH ITS MANAGER DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

12. SHRINATH HIGHER SECONDARY SCHOOL
THROUGH ITS MANAGER DISTRICT
CHHINDWARA M.P. (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI K.C. GHILDIYAL, SENIOR ADVOCATE ASSISTED WITH
SHRI PRADEEP KUMAR DWIVEDI, ADVOCATE)

This petition coming on for admission this day, th e court passed the
following:
ORDER

This order shall also govern disposal of RP No.666/2022. The State has filed an application vide IA No.12164/2022 seeking review/recall of the order dated 28/06/2018 passed in WP No.2784/2012.

Vide order dated 28/06/2018, Writ Court decided two writ petitions being WP No.2784/2012 and WP No.19507/2012 by a common order. Seeking review of the order passed in WP No.19507/2012, the State has filed Review Petition vide RP No.666/2022, thus, the said Review Petition is also being decided by this composite order.

Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

Learned counsel for the State submits that the respondents/employee filed a petition before this Court and prayed for relief to the extent that the order dated 20/01/2012 be quashed and the respondents be directed to grant the benefit of pay scale of Rs.3,000-5,000/- to the petitioner as admissible to a Shiksha Karmi Grade-III under the Fifth Pay Commission w.e.f. 01/09/1996 along with arrears and interest.

Learned counsel contends that before the Writ Court, heavy reliance was placed on the decision of Apex Court in Civil Appeal No.6362/2004 and also order dated 03/11/2016 issued by the State Government, after passing of the order by the Apex Court dated 07/01/2014, in aforesaid Civil Appeal No.6362/2004. Learned counsel contends that in the light of the decision of the Apex Court dated 07/01/2014 and also the order issued by the State Government dated 03/11/2016, a Writ Petition was filed by the respondents/employees was allowed and the respondents/employees were found entitled for the salary of Shiksha Karmi from 01/04/2000 to 31/03/2007 at the rate the Shikha Karmis of the Government Institutions were paid and the respondents/employees also found entitled for salary of "Sahayak Adhyapak" w.e.f. 01/04/2007 at the rate as applicable to the "Sahayak Adhayapaks" working in the institutions under the Panchayats or other local bodies. Thus, learned counsel contends that a perusal of the order passed by this Court reveals that in the light of the order dated 03/11/2016, this Court allowed the writ petition whereas the order dated 03/11/2016 was further amended by another order dated 21/12/2017 (Annexure/IA/3) by which Clause 5 of the order dated 03/11/2016 was substituted and was further clarified that as many as 93 Shiksha Karmis including the present petitioner who were appointed with the non government school receiving grant-in-aid, will be entitled for the pay scale Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

of Adhyapak Samvarg from 01/04/2007 but if they are found entitled for the same, the notional pay fixation shall be carried out and the actual payment/disbursement shall only be available w.e.f. 03/11/2016.

Learned counsel contends that this order dated 21/12/2017 could not be brought to the notice of this Court at the time of hearing and resultantly the order dated 28/06/2018 was passed. Learned counsel further submits that the order dated 03/11/2016 as well as 21/12/2017 are applicable to as many as 93 employees including respondents and apart from the respondents, remaining all 86 employees have accepted their notional pay fixation in terms of order dated 21/12/2017 and the said order could not be brought to the notice of this Court by the counsel defending the respondents in the petition and this Court on the basis of the order passed by the Apex Court dated 07/01/2014 in Civil Appeal No.6362/2004 and also order dated 03/11/2016, held that the respondents/employees were entitled for the salary of Shiksha Karmi from 01/04/2000 to 31/03/2007 and thereafter, salary of Sahayak Pradhyapak w.e.f. 01/04/2007. Learned counsel contends that this benefit was only to be extended notionally in terms of the order dated 21/12/2017 and since the order dated 21/12/2017 could not be brought to the notice of this Court, the respondents are pressing hard and even have filed the Contempt Petition which are connected in the present petition. Thus while placing reliance on the decision of this Court in the case of Rajendra Singh Vs. Lt. Governor Andaman & Nicobar Islands and Ors. reported in 2005 (13) SCC 289 submits that non production as well as non consideration of the relevant documents attracts the invocation of power of review and accordingly submits that the order passed by this Court deserves to be reviewed/recalled.

Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

Per contra, learned counsel for the respondents submits that the present application seeking review of order passed by this Court in WP No.2784/2012 is misconceived inasmuch as the scope of review is limited. The Court while entertaining the Review Petition can only interfere if there is an error apparent on the face of record. It is the further submission of the counsel that the petitioner herein has failed to satisfy the grounds on which a review petition under Order 47 Rule 1 of CPC is maintainable. It is further submitted that the Division Bench in the case of Suresh Kumar Dwivedi and Ors. Vs. State of Madhya Pradesh and Ors. reported in 1993 MPLJ 663 while dealing with almost identical issue, directed the State to confer the benefit to the employees. It is submitted that as per law laid down by the Apex Court in the case of State of Orissa & Anr. Vs. Mamata Mohanty reported in 2011(3) SCC 436, this Court is even empowered to ignore the subsequent order dated 21/12/2017 which is being relied upon by the Review Petitioner. Thus, submits that review petition deserves to be dismissed.

No other point is argued by the parties.

Heard rival submission of the parties and perused the record. In order to deal with the issue, it is important to examine as to on what ground the petition filed by the respondents/employees was allowed. This Court, while allowing the Writ Petition, held in paragraph 13 as under:

"13. I have heard the learned counsel for the parties. This petition was filed by the petitioner in the years 2012 and the reliefs were accordingly claimed. However, in view of the order passed by the Hon'Â™ble Apex Court on 07/01/2014 and the order dated 03/11/2016 passed by the State Government during pendency of the writ petition, the issue regarding payment of salary to the petitioner from the grant-in aid and absorption as Sahayak Adhyapak stand concluded. Now it is to be seen as to what

further relief the petitioner is entitled to receive from this court."

Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

A perusal of the aforesaid paragraph palpably reflects that this Court while taking note of the order passed by the Apex Court dated 07/01/2014 and also the order dated 03/11/2016 passed by the State Government, which were issued during pendency of the writ petition, held that the issue regarding payment of salary to the petitioner from grant-in-aid and absorption as Sahayak Adhyapak stands concluded. This Court further observed that it was to been seen now as to what further relief, the petitioners were entitled to receive from this Court. Thereafter, this Court allowed the writ petition in terms of the aforesaid order and accordingly issued direction to the respondents/employees which are stipulated in paragraph 16 of the order.

A perusal of the order dated 28/06/2018, leaves no iota of debate that the said order was passed on the basis of the decision of the Apex Court dated 07/01/2014 which was in respect of payment of salary to the employee from the grant-in-aid and also the order dated 03/11/2016 issued by the State Government which was in respect of absorption as Sahayak Adhyapak. It is also not disputed by the respondents/employees that subsequently an order dated 21/12/2017 (Annexure/IA/3) was issued but the same was not brought to the notice of this Court. It is also important to note that the respondents/employees also did not bring the said order to the notice of this Court and they have not disputed that the remaining employees accepted their notional pay fixation in terms of order dated 21/12/2017 who were standing on same footing as of the respondents/employees.

The Division Bench, in the case of Suresh Kumar (Supra) held in paragraph 17, 18 and 20 has held as under:

"17. In our opinion, no direction can be issued to the State Government in respect of the aforesaid claims, as it cannot be disputed that implementation of the Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

aforesaid claims is a policy matter involving heavy financial burden. The teachers of the aided institutions are not appointed under the State Government. There is no relationship of master and servant between the State Government and the teachers. There is no provision in the Act or the rules applicable to such teachers or employees for payment of the aforesaid benefits. It is not clear how the State Government is accountable for extending such benefits and facilities. Since it is a policy matter involving financial burden, it is not the function of this Court to compel the Government to accord sanction, as the Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. See Union of India v. Tejram Parashramji Bombhate; (1991) 3 SCC 11. The Haryana Teachers cases relied by petitioners are of no help, as they relate to parity in pay scales only, which was recommended by the expert body, like Kothari Commission, and the Haryana Government after the report of the Pay Commission, expressed its readiness and willingness to implement the same at par so far as the salaries and additional dearness allowance, etc. were concerned. There too, the benefits of C.C.A., medical allowance, pension and gratuity were not extended.

18. The petitioners have claimed time-bound advancement to the recognised teachers or employees in accordance with Annexure P/7, dated 14-2-1986, and Annexure P/8, dated 11-7-1987, which have been made applicable to aided schools, but, so far, benefits of the same have not been given to the aided schools. As it involves financial implication, we are not inclined to make any direction. However, it is expected from the Government to consider the claim of time-bound advancement in the pay scale in the tight of Annexures P/7 and P/8 and in view of Annexure P/5, whereby time- bound scheme has been implemented in Sagar Division to aided schools.

20. In the result, a writ of mandamus is issued commanding the State Government and its authorities to disburse the monthly salary of the teachers by 20th of each month regularly next after the salary month. The due salary of previous months not paid so far shall also be disbursed by 20th of the next month. Petitioners shall be paid D.A. equal to that being paid to teachers and employees of the Government institutions from 1-8-1989. Arrears of D.A. shall be paid by 31st of October 1993. The notional fixation of revised pay shall be made from 1-1-1986 by the end of this year. The teachers shall be paid house rent allowance monthly with their salary by 20th of each month, and for that suitable provision shall be made within three months. The Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

claim of the teachers in respect of time-bound advancement in the pay scales shall be considered and a decision shall be taken thereon within six months; if on consideration the claim is not accepted, the petitioners shall be free to take recourse to appropriate proceeding in accordance with law."

A perusal of the aforesaid decision reflects that the effect of financial implication was also taken note of by the Division Bench of this Court in the case of Suresh Kumar (Supra) and in the present case undisputedly the respondents/employees are employees of aided institution and are claiming parity with the similarly situated employees employed by the government, thus, the order passed by this Court dated 28/06/2018 has a direct nexus with the financial burden which is to be discharged by the State Government. The same benefits which have been extended to the petitioner, have not been extended to the other 86 employees inasmuch as they have accepted their notional pay fixation in terms of order dated 21/12/2017. Thus, it can not be ruled out that those 86 employees will also raise the similar claim having accepted their notional pay fixation unconditionally. It is also not beyond comprehension that if the benefit on the strength of the order dated 03/11/2016 while being oblivious of the order dated 21/12/2017 is extended to the respondents/employees, the same would open the flood gate of litigations. The order passed by this Court dated 28/06/2018 has been passed without taking into consideration the subsequent order dated 21/12/2017 (Annexure/IA/3) which has also been implemented, therefore the order passed by this Court would not only cause financial burden upon the State but would also be used to unsettle a settled position by which the remaining employees have accepted their notional pay fixation without any demur or protest in terms of order dated 21/12/2017.

In the present case, the respondents have stated on affidavit that the Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM

amended order dated 21/12/2017 could not be brought to the notice of this Court, therefore, in terms of the provisions of order 47 Rule 1 of CPC, the present Review Petition deserves to be allowed as the said order dated 21/12/2017 could not be brought to the notice of this Court despite diligence and even the respondents/employees also did not bring the said order to the notice of this Court, having not disputed the fact that remaining 86 employee accepted their notional pay fixation on the strength of the amended order dated 21/12/2017.

The judgement in State of Orissa & Anr. (Supra) is distinguishable inasmuch as in the present case subsequent order dated 21/12/2017 is not an order afresh, on the contrary, amends/substitutes the original order dated 30/11/2016.

In view of the aforesaid analysis, in the considered view of this Court the respondents/employees have made out a case for review of the order dated 28/06/2018 as the same has been passed in ignorance of important order dated 21/12/2017 which goes to the root of the lis which was pending before this Court.

Accordingly, the order dated 28/06/2018 is recalled. The order dated 28/06/2018 in Writ Petitions No.2784/2012 & 19507/2012 is recalled and the writ petitions No.2784/2012 & 19507/2012 are restored to their original numbers and be listed for hearing as per roster.

(MANINDER S BHATTI) JUDGE Astha

Signature Not Verified Signed by: ASTHA SEN Signing time: 11/2/2022 2:28:56 PM