Shri Govindram Seksaria ... vs Mahipal Singh Jeena
2023 Latest Caselaw 10076 MP

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                 BEFORE
                          HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                    &
                                     HON'BLE SHRI JUSTICE HIRDESH
                                                 ON THE 4 th OF JULY, 2023
                                                WRIT APPEAL No. 49 of 2021

                         BETWEEN:-
                         SHRI   GOVINDRAM     SEKSARIA       INSTITUTE OF
                         TECHNOLOGY AND SCIENCE, (AN AUTONOMOUS
                         GRANT-IN-AID INSTITUTION), 23, M. VISHVESHVARAYA
                         MARG (PARK ROAD), INDORE (MADHYA PRADESH)

                                                                                          .....APPELLANT
                         (SHRI H.Y. MEHTA, COUNSEL FOR THE APPELLANT).

                         AND
                         MAHIPAL SINGH JEENA S/O LATE SHRI C.S. JEENA,
                         AGED ABOUT 63 YEARS, OCCUPATION: RETIRED B-102/
                         SCHEME NO. 74 C VIJAY NAGAR, INDORE (MADHYA
                         PRADESH)

                                                                                        .....RESPONDENT
                         (SHRI L.C.PATNE, COUNSEL FOR THE RESPONDENT).

                               This appeal coming on for hearing this day, JUSTICE SUSHRUT

                         ARVIND DHARMADHIKARI passed the following:


                                                           JUDGMENT

The matter is heard finally with the consent of both the parties.

2. The present writ appeal filed under Section 2 of the M.P.Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 assails the order dated 05.06.2020 passed in W.P.No. 3014/2018 whereby the learned writ Court has allowed the petition filed by the respondent.

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3. The petitioner (respondent herein) had filed a writ petition against the inaction of the appellant in not extending the benefit of second time pay scale to the respondent as well as the orders dated 19.02.2018 (Annexure P/7) whereby the pay fixation has been reversed on the objection raised by the Resident Auditor including the benefit of time pay scale which was extended to the him. The respondent had also challenged the order dated 20.02.2018 (Annexure P/8) whereby recovery has been ordered in view of the withdrawal of the benefit of second time pay scale.

4. The brief facts of the case are that the respondent was initially appointed in the appellant-institution as Lower Division Clerk (LDC) on daily

wages on 12.04.1979. Thereafter, he was regularised on the post of LDC on 26.05.1981. The respondent participated in the direct recruitment process for the post of Upper Division Clerk (UDC) and was appointed as UDC in the year 1986. Thereafter, he became Office Assistant on 28.07.1993. An open advertisement was issued for the post of Registrar in the appellant-institution. The respondent applied and was selected on the post of Registrar on 15.12.1997 by direct recruitment. As per the circular, respondent became entitled for first time pay scale in the year 2006. He was granted the first time scale vide order dated 06.05.2010 w.e.f. 01.04.2006. As per the applicable rules, respondent and other Class A and B non-teaching staff, who were appointed by open selection procedure became entitled to grant of second time pay scale after 16 years of service. The respondent became eligible on 15.10.2013. The case of the respondent and other 79 employees were considered by the Committee in its meeting held on 07.04.2016 for the purpose. Inspite of the recommendation and due approval of the then Director,

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the respondent was discriminated again and subjected to hostile discrimination, as is evident from the fact that 79 employees were granted benefit of second time pay scale and the respondent was denied. Being aggrieved, he submitted a representation. However, the appellant maintained silence. Therefore, the respondent filed writ petition No. 3014 of 2018 before this Court. The said writ petition was allowed vide order dated 05.06.2020 and the orders impugned were set aside. Appellant was directed to consider the case of the respondent for grant of second time pay scale in accordance with law and also directed to pay the retiral dues etc. within a period of three months.

5. Being aggrieved, the appellant has preferred the present writ appeal.

6. Learned counsel for the appellant submitted that the grant of first time pay scale was itself a provisional order and subject to audit by the State Government. Due to Resident Audit Objection, the order for grant of first time pay scale was withdrawn and as a consequence, recovery was also ordered. The learned writ Court erred in relying on the case of Abhimanyu Vyas vs. State of M.P. (W.P.No. 10948 of 2018 decided on 15.03.2019) since the post of the respondent does not find place in the notification dated 24.01.2008. There is no provision for grant of financial upgradation to the post of Registrar in the Institution. The writ Court even erred in relying upon the judgment passed by this Court in case of Smt. Sashibala Chouhan vs. State of M.P. &

Ors. (W.P. No. 22983 of 2019 decided on 01.03.2019) since the facts are different from the present case. The learned writ Court also placed reliance on the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 since the order was applicable only to Class 3 and 4 employees. The respondent is a Class 2 employee, therefore Rafiq Masih (supra) cannot be made applicable to his case. Learned counsel for the Signature Not Verified Signed by: SREEVIDYA Signing time: 7/5/2023 6:15:38 PM

appellant also contended that the Apex Court in case of Chandiprasad Uniyal and Ors vs. State of Uttarakhand (2012) 8 SCC 117 has held that a wrong fixation cannot be permitted to be continued. A wrong fixation on the behest of the employer/employee is a loss to the public exchequer and should be curtailed. Therefore, the Apex Court permitted recovery in lieu of fixation made wrongly.

7. Learned counsel for the appellant contended that the learned writ Court also did not consider the notification dated 24.01.2008 to ascertain the fact as to whether the post of Registrar has any further avenue of promotion or not. In fact the notification does not describe the post of Registrar to be the beneficiary under the notification. Secondly, it is contended that the respondent had earned promotion, therefore, there was no question of grant of financial upgradation. The basic purpose of financial upgradation is to remove stagnation, however, in this case, there is no stagnation on account of promotion. Hence, on these ground, this appeal deserves to be allowed.

8. Per contra, learned counsel for the respondent vehemently opposed the prayer and contended that appellant-institution has not framed any recruitment or service rules regarding the service conditions of its employees. Admittedly, the benefit of first financial upgradation was granted to the respondent on 06.05.2010. The appellant-institution sought clarification vide letter 13.10.2017 (Annexure P/12) in respect of grant financial upgradation to the non-teaching staff from the Director Technical Education (DTE), Bhopal. In response to the letter dated 13.10.2017, the DTE replied on 24.11.2017 (Annexure P/13) stating the appellant institution is a grant-in-aid institution and is having a Board of Governors (BoG) or the Governing Body. Looking to the

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fact that the posts in the appellant-institution is being filled up through direct recruitment and there being no scheme for promotion, the institution would be free to place the matter before the BoG and on approval, the institution can itself grant the financial upgradation. In view of the aforesaid clarification, it cannot be said that the post of Registrar does not find mention in the notification dated 24.01.2008. In fact, post facto approval has been granted for financial upgradation to the non-teaching staff including the Registrar. The matter having been placed before the BoG, the BoG vide resolution dated 07.04.2016 (Annexure P/3) had specifically taken a decision in the name of the respondent to grant the second financial upgradation. The BoG approved the recommendation of the Committee and also directed the Registrar to issue orders.

9. Learned counsel for the respondent further contended that the contention of the appellant that the name has not been mentioned in the notification dated 24.01.2008 and that the respondent had earned promotion, cannot be countenanced in as much as the learned Single Judge in paragraph 15 and 17 of the impugned order has considered these two aspects, therefore, it cannot be said that the learned Single Judge has passed the impugned order without considering the aforesaid contentions of the appellant. In view of the aforesaid, no interference is required in the matter and the writ appeal being devoid of merit and substance is liable to be dismissed.

10. Heard learned counsel for the parties. Perused the record.

11. It is evident from Annexure P/12 dated 13.10.2017, whereby the appellant-institution had sought guidance in respect of grant of financial upgradation. In response, the Director Technical Education vide reply dated 24.11.2017 (Annexure P/13) clearly stated that the Registrar is also eligible for Signature Not Verified Signed by: SREEVIDYA Signing time: 7/5/2023 6:15:38 PM

financial upgradation. Thereafter, the BoGs took a decision vide resolution dated 07.04.2016 (Annexure P/3) specifically recommending grant of second financial upgradation to the respondent herein and the same was duly approved by the Committee with the direction to issue the consequential order. Learned writ Court has considered these aspects in detail and the ground raised by the appellant have been duly considered in paragraph 15 and 17 of the judgment.

12. In view of the aforesaid, this Court has no hesitation in holding that the action of the appellant-institution is certainly violative of Article 14, 16 and 21 of the Constitution of India. This Court does not find any merit or substance in the writ appeal. Accordingly, the same is hereby dismissed.

13. The appellant/institution is directed to comply with the order dated 05.06.2020 passed by the learned writ Court in W.P.No. 3014/2018 in letter and spirit as expeditiously as possible, preferably within a period of three months from the date of receipt of certified copy of this order.

14. No order as to cost.

                            (S. A. DHARMADHIKARI)                                              (HIRDESH)
                                     JUDGE                                                       JUDGE
                         vidya




Signature Not Verified
Signed by: SREEVIDYA
Signing time: 7/5/2023
6:15:38 PM