Madhya Pradesh High Court
Shiv Shankar vs Principal Secretary The State Of ... on 12 June, 2023
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 12th OF JUNE, 2023
WRIT PETITION No. 2768 of 2012
BETWEEN:-
SHIV SHANKAR S/O DHOTHIA AWALEKAR, AGED
ABOUT 55 YEARS, OCCUPATION: SERVICE, R/O
NAGJHIRI, DISTRICT UJJAIN (MADHYA
PRADESH)
.....PETITIONER
(SHRI PADMNABH SAXENA, LEARNED COUNSEL FOR THE PETITIONER.)
AND
THE STATE OF MADHYA PRADESH,THROUGH
1. PRINCIPAL SECRETARY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
THE SECRETARY, DEPARTMENT OF SOCIAL
2. JUSTICE, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
THE COMMISSIONER, DEPARTMENT OF
3. SOCIAL JUSTICE, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
THE DIRECTOR, DEPARTMENT OF SOCIAL
4. JUSTICE, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
THE JOINT DIRECTOR, UJJAIN DIVISION,
5.
UJJAIN (MADHYA PRADESH)
THE COLLECTOR, UJJAIN, DISTRICT UJJAIN
6.
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT / STATE.)
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
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Reserved on : 09.05.2023.
Delivered on : 12.06.2023.
ORDER
Petitioner has filed the present petition being aggrieved by
the order dated 18.01.2011 passed by Joint Director, Social Justice,
Ujjain Division and also the order dated 22.03.2011 passed by
Commissioner, Department of Social Justice, Bhopal whereby the three
promotions of the petitioner to the post of Upper Division Clerk (UDC),
Accountant and Senior Accountant have been set aside with recovery of
Rs.6,16,000/-.
The facts of the case in short are as under:
1- Vide order dated 07.08.1979, the petitioner was appointed
to the post of UDC on a pay-scale of Rs.169-300 on a temporary basis
with a condition that after appointment he will have to pass the Hindi
Typing Examination from Madhya Pradesh Stenographer Typing
Council within two years and if he acquires this qualification he shall be
appointed for two years on probation to the post of Lower Division
Clerk (LDC) and if fails than the services shall be discontinued after
completion of two years.
2- Admittedly, the petitioner could not acquire the aforesaid
qualification within a period of two years even till retirement from
service. But he was considered for the promotion to the post of UDC
and vide order dated 04.11.1982, he was promoted to the post of UDC
on a pay-scale of Rs.195-330. Thereafter he was further promoted to the
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
post of Accountant vide order dated 27.06.1985 and he was further
considered for promotion to the post of Senior Accountant on a pay-
scale of Rs.4500-7000 and order dated 15.152.2004 was issued by
Commissioner, Panchayat and Social Services.
3- The petitioner submitted a representation to the Joint
Director, Ujjain claiming the benefit of the annual increment which was
not given to him till date. Vide order dated 27.07.2009, the Joint
Director, Ujjain demanded (i) an appointment order to the post of
Assistant Grade-III, (ii) a certificate of passing of Typing Examination
and (iii) a certificate of passing of Accountant Examination. The
petitioner submitted a reply along with an appointment order, a
certificate of passing of Hindi Typing Examination from a local typing
institute and a certificate of accountant and Accountancy.
4- Since the petitioner was not possessing the qualification of
Hindi Typing from the Madhya Pradesh Stenographer Typing Council,
therefore, the Joint Director, Ujjain has forwarded the case of the
petitioner to the Commissioner, Social Justice, Bhopal along with the
service record bringing the facts to the knowledge that despite non-
possession the essential qualification, the services of the petitioner were
continued in the department. Thereafter, a show cause notice dated
08.03.2010 was issued to the petitioner as to why the excess salary of
promotional posts paid due to illegal promotion be not recovered in
view of the undertaking given by the petitioner. The petitioner submitted
a reply dated 11.03.2010 submitting that he was given the promotion by
the Government because the entire service book was available with the
department and no facts were concealed by him. Another show cause
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Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
notice dated 19.11.2010 was issued by Commissioner in respect of the
cancellation of all the promotion and recovery of the excess amount and
again the petitioner submitted a reply dated 26.11.2010.
5- Vide order dated 22.03.2011, the Commissioner, Social
Justice, Bhopal held that the GAD of State Government vide circular
dated 15.11.1984 has done away with the passing of typing examination
to those employees who have crossed the age of 40 years, therefore, at
the most, the petitioner shall be entitled to exemption from typing
examination with effect from 16.01.1996 when he attained the age of 40
years and accordingly he was regularized to the post of LDC in a pay-
scale of Rs.3050-4590 with effect from 17.01.1996 and for further
promotion, the direction was issued to conduct a review DPC within a
month.
6- Vide order dated 18.11.2011, refixation of pay was done
and direction was issued to recover the axes amount paid to the
petitioner. Being aggrieved by the aforesaid orders, the petitioner filed
this present petition before this Court.
7- Vide order dated 29.03.2012 while issuing notice to the
respondents, by way of an interim relief recovery against the petitioner
has been stayed. All the promotions were treated to be cancelled and the
petitioner became a regular LDC with effect from 17.01.1996 and
retired from service upon attaining the age of superannuation on
31.03.2016.
8- Respondents filed the return by submitting that in
compliance of Annexure R/1, the amount of Rs.6,16,000/- is liable to be
recovered and so far as the further promotion to the post of LDC,
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Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
Accountant and Senior Accountant is concerned, the case of the
petitioner was considered and found that his name is on serial No.99 of
the gradation list issued as on 01.04.1996 and no Junior to him has been
considered for promotion for want of vacancy, therefore, there is no
need to conduct a review DPC. The petitioner has not challenged the
aforesaid order by way of amendment in this writ petition. During
pendency of this petition, the petitioner attained the age of
superannuation on 31.03.2016 and retired from service, the amount of
Rs.6,13,036/- has been recovered from the amount of gradation and the
remaining amount of Rs.6,45,676/- has been paid to the petitioner.
Appreciations & Conclusion
9- Admittedly, the petitioner was appointed to the post of LDC
and at that time he was not having the qualification of typing
examination from the Madhya Pradesh Stenographer Typing Council
which is an essential qualification in the recruitment rules. The
appointment order was issued with the condition that he will have to
pass the examination within a period of two years, but the petitioner did
not pass the aforesaid examination and he was permitted to continue in
the service. He was considered for promotion to the post of UDC,
Accountant and further Senior Accountant by the respondents and for
which the petitioner cannot be held responsible. The petitioner claimed
the benefit of two increments by submitting a representation then the
fact of non-passing Typing Test came to the knowledge of Assistant
Commissioner, Ujjain.
10- The petitioner was called upon to submit the aforesaid
documents and since he did not pass the typing examination therefore,
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
his further promotions to the post of Accountant and Senior Accountant
have been found illegal and accordingly cancelled. Vide order dated
15.11.1984 the GAD of the Government of M.P. relaxed the condition of
passing typing examination to those employees who have crossed the
age of 40 years therefore, the petitioner was treated to be appointed
LDC under said circular after completion of 40 years of service,
therefore, there is no illegality on the part of the respondents while
passing the impugned orders.
11- Undisputedly, the typing examination is a mandatory
qualification for the post of LDC under the recruitment rules applicable
at the relevant point of time however, the issue of passing of typing
examination came up for consideration before the full bench of this
Court in case of Manoj Kumar Purohit and other v/s State of M.P. and
others[2016 (1) MPLJ 449] this Court has answered the reference that
when the recruitment rule stipulates that candidate, in order to be
eligible for appointment to the post of LDC, should have possessed the
Hindi Typing test then appointee would be entitled to grant the benefit
of increment only after passing of typing test. This Court has held that
he would not be entitled to increment on the ground of non-passing of
Hindi typing test. It has not been held that this appointment would be
illegal. The Full Bench has also considered the circular dated
19.02.1990 issued by the State Government providing that employees
who could not pass the typing test and have completed 40 years of age
such employees would not be required to pass the Hindi Typing Test.
Their services will be regularized on the basis of Assistant Grade-III.
According to Class-III (Ministerial) Service Recruitment Rules, 1998
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Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
the educational qualifications for the post of Assistant Grade-III is as
under:
Assistant Grade-III 18 years 35 years Compulsory
1. Must have passed the Higher Secondary Examination of
old pattern from the Board of Secondary Education
Madhya Pradesh or from any recognized institution or
High School Examination under 10+2 Education
pattern.
2. Must have passed Hindi Typing examination from
Madhya Pradesh Shorthand and Typing Board or from
any Institution recognized by the State Government.
3. Knowledge of Computer is essential.
12- The only issue which requires consideration is whether the
recovery of excess payment paid to the petitioner of promotional posts is
justified or not.
13- It is not the case of the respondents that the petitioner
suppressed the fact of non passing of Typing Examination, his service
book was available in the office and his service records were considered
for his promotion. The Respondents after examining his service records
found him fit for the promotion. For the promotional post, the typing
examination was not necessary, therefore, he was promoted from the
post of LDC to UDC then from UDC to Accountant and Accountant to
Senior Accountant. It is also not disputed that after the aforesaid
promotion, the petitioner worked on the said posts and there is no
complaint about his working, therefore, since he had worked on the
promotional posts on the basis of promotional orders issued by the
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
respondent, the petitioner is entitled for the salary of the said posts
hence, the recovery is totally unjustified.
14- So far as the action of recovery from the retiral dues is
concerned, the Apex Court in the case of M.P. Medical Officers
Association reported in 2022 SCC OnLine SC 1099 has quashed the
recovery on the ground that there was no misrepresentation on the part
of the concerned employees/members of association nor can mistake be
attributed to them for grant of benefit of circular dated 23.05.2009 and
after retirement on attaining the age of superannuation the recovery shall
be from their pension / pensionary benefits. Paragraph No.8 of the
aforesaid judgment is reproduced below:
8. It is not in dispute that the members of the appellant
association, who were serving as Specialists, Dental Specialists
and officers in the specialist's cadre got the benefits under the
circular dated 23.05.2009. It was the Department/State, who
Issued the circular dated 23.05.2009 and paid the benefits under
the circular dated 23.05.2009 to the members of the appellant
association, which subsequently came to be withdrawn by the
State in the year 2012. Therefore, as such, there was neither any
misrepresentation on the part of the concerned employees
members of the appellant association nor can the mistake be
attributed to them. The mistake, if any, can be said to be that of
the Department/State, who issued the circular dated 23.05.2009
under which the members of the association were given certain
benefits till the same was withdrawn in the year 2012. Therefore,
in the peculiar facts and circumstances of the case, the State was
not justified in ordering recovery of the excess amount paid
along with the interest. It is true that stricto sensu, the decision of
this Court in the case of State of Punjab v. Rafiq Masih, (2015) 4
SCC 334 may not be applicable. However, at the same time, as
observed hereinabove, and in the facts and circumstances of the
case, the State was not justified in ordering recovery of the
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
excess amount paid with interest, more particularly, when it is
reported that some of the doctors/dentists - members of the
association have retired on attaining the age of superannuation
and the recovery shall be from their pension/pensionary benefits.
However, at the same time, their pay fixation and the pension
shall have to be as per the order dated 26.08.2008.
15- In the present case also now the recovery is being made
after the retirement of this petitioner from his retiral dues and it is also
not the case of respondents that he ever misrepresented or suppressed
the fact about non-passing of typing examination, thrice his name was
considered for promotion on the basis of the service record and he was
promoted, over and above, he had worked on the promotional posts,
therefore, the recovery is totally unjustified.
16- In view of the above, the present petition is partly allowed.
The impugned orders dated 22.03.2011 and 18.01.2011 are hereby
upheld but the recovery of Rs.6,16,000/- is hereby quashed and the same
be returned to the petitioner within a period of three months from today.
If the amount is not returned within a period of three months then it
shall carry interest at the rate of 6% from the date of recovery till the
date of payment.
(VIVEK RUSIA)
JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 12-06-2023
18:02:24
