Madhya Pradesh High Court

Dr. Smt. Usha Tiwari vs The State Of Madhya Pradesh on 12 June, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 12th OF JUNE 2023
WRIT PETITION No.15921 of 2015

BETWEEN:-

DR. SMT. USHA TIWARI W/O SHRI JAI NARAYAN TIWARI,
AGED ABOUT 57 YEARS R/O ASSISTANT PROFESSOR
(HISTORY), POSTED AT GOVERNMETN GIRLS COLLEGE,
SAGAR DISTRICT SAGAR (MP)
.....PETITIONER

(BY SHRI ADITYA AHIWASI - ADVOCATE)

AND

1. STATE OF M.P. THOUGH THE SECRETARY
MINISTRY OF HIGHER EDUCATION, VALLABH
BHAWAN, BHOPAL (MP).
2. THE COMMISSIONER, M.P. HIGHER EDUCATION,
5TH FLOOR, SATPUDA BHAWAN, BHOPAL (MP).
3. THE PRINCIPAL, GOVERNMENT GIRLS P.G.
COLLEGE, SAGAR, DISTRICT SAGAR (MP)
.....RESPONDENTS
(BY SHRI L.A.S. BAGHEL - GOVERNMENT ADVOCATE)
..............................................................................................................................................................................
Reserved on : 03.05.2023
Pronounced on : 12.06.2023
..............................................................................................................................................................................

This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
2

ORDER

Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is finally heard.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is claiming following relief(s):-

"(A) Call the entire records pertaining to the petitioner from the respondents.

(A1) That this Hon'ble Court be pleased to set aside the impugned order dated 02.06.2016 issued by the respondent No.2 (Annexure P/9) in respect of petitioner.

(B) That this Hon'ble Court be pleased to direct the respondent authorities to grant the benefit of senior selection grade w.e.f. 01.10.2001 instead of 01.04.2004 along with all consequential benefits and arrears.

(C) To direct the respondents to grant the benefits of 4 th Pay Band w.e.f. 01.01.2006 instead of 01.04.2007.

(D) To grant any other relief, which this Hon'ble Court may deem fit and proper looking to the facts and circumstances of the case, in favour of the petitioner with cost of the petition.

(D1) That the impugned order dated 02.06.2016 (Annexure P/9) is illegal arbitrary and bad in law.

(D2) That the respondents without affording any opportunity of hearing to the petitioner have issued the impugned order dated 02.06.2016 and illegally amended the date of

grant of service benefits. The impugned order suffers from perversity and same is liable to be set aside."

3. As per facts of the case, the petitioner was initially appointed on the post of Lecturer vide order dated 12.02.1985 and subsequently, her services were regularized w.e.f. 15.06.1987. However, after completion of eight years of service, vide order dated 10.08.1998 (Annexure-P/5), the petitioner was initially granted senior pay-scale w.e.f. 01.10.1996 and thereafter, vide order dated 15.04.2005 (Annexure-P/6), she was granted senior selection grade w.e.f. 01.04.2004 and then vide order dated 29.08.2013 (Annexure-P/7), she was granted fourth pay band w.e.f. 01.04.2007. Later on, the State Government issued a circular on 25.01.2017 (Annexure-RJ/1) relying upon a circular issued on 11.10.1999 whereunder for senior pay-scale, the minimum period of service was prescribed as six years but that period was relaxed for the employees having Ph.D. and M.Phill degree and as such, instead of six years, it should be granted after completion of four and five years respectively. For senior selection grade, five years period was required after getting senior pay-scale. However, the petitioner had made a representation i.e. Annexure-P/8 before the respondent/authority for correction of dates of grant of senior selection grade and fourth pay band asking the said benefit on some prior dates and in turn, the respondent on 02.06.2016 (Annexure- P/9) passed an order and instead of granting the benefit on the prior dates, granted it on subsequent dates and as such, the petitioner has assailed the said order.

4. The respondents have filed reply to the petition taking stand therein that as per the provisions of rules i.e. M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990, the petitioner was entitled to

get the senior pay-scale after completion of eight years of regular service and after completion of further eight years of service on the said grade, senior selection grade was granted to her.

5. In response to reply, the petitioner has filed rejoinder mentioning therein that in view of the order issued by the State Government on 25.01.2017 (Annexure-RJ/1), the benefit which was granted to her should have been granted with some prior dates.

6. The respondents have also filed additional reply in which they have taken a stand that the ACRs of the petitioner were not up to the mark as for the years 1991, 1997, 1999, she was awarded gradings 'x' whereas for the years 1992, 1998, she was awarded gradings '?k' and as such, she was granted the benefit of senior pay-scale, senior selection grade and fourth pay band vide order dated 02.06.2016 (Annexure-P/9).

7. In the second reply, the respondents have reiterated the stand earlier taken by them. However, in their reply, they have also admitted that the adverse ACRs were never communicated to the petitioner.

8. Learned counsel for the petitioner has contended that the ACRs which were not communicated to the petitioner, cannot be taken into account and on the basis of the same, she cannot be deprived to get the benefits of senior pay-scale, senior selection grade and fourth pay band. In support of his contention, he has also placed reliance upon a judgment reported in 2015 14 SCC 427 [Prabhu Dayal Khandelwal Vs. Chairman, UPSC and others].

9. I have heard the arguments advanced by learned counsel for the parties and perused the record.

10. The main grievance as has been raised by the petitioner is that

in light of circular issued by the State Government on 25.01.2017 (Annexure-RJ/1), she should be granted the benefit of senior pay-scale w.e.f. 01.10.1996, senior selection grade w.e.f. 01.10.2001 and the benefit of fourth pay band w.e.f. 01.04.2006. As per the order dated 02.06.2016 (Annexure-P/9), the benefit of senior pay-scale granted to the petitioner from 01.10.1996 was modified and granted to her w.e.f. 01.04.2003 and further senior selection grade which had been granted to her w.e.f. 01.04.2004 was granted from 01.04.2008. According to the petitioner, this order is liable to be set aside because the same is contrary to circular issued by the State Government on 25.01.2017 (Annexure-RJ/1) wherein regularization was provided to the Teaching Staff working in the Higher Education Department. According to learned counsel for the petitioner, the order dated 02.06.2016 (Annexure-P/9) was issued without affording any opportunity of hearing to the petitioner. However, in the reply filed by the respondents the said contention has also not been answered as to why, the petitioner has not been granted any opportunity of hearing before passing the order dated 02.06.2016. As per the settled principle of law, any order passed by the authority carries civil consequences cannot be issued without following the principle of natural justice. Dealing with similar situation, the Supreme Court in the case reported in 1991 Supp (1) SCC 330 [Shrawan Kumar Jha and others Vs. State of Bihar and others] has observed as under:-

"3. By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr U.R. Lalit and Mr A.K. Ganguli, learned senior advocates, appearing for the appellants have

controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period.

(emphasis supplied)"

Furthermore, in a case reported in (2014) 9 SCC 105 [Gorkha Security Services Vs. Government (NCT of Delhi) and others], the Supreme Court has observed as under:-

"No doubt, rules of natural justice are not embodied rules nor can they be lifted to the position of fundamental rights. However, their aim is to secure justice and to prevent miscarriage of justice. It is now well-established proposition of law that unless a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, any exercise of power prejudicially affecting another must be in conformity with the rules of natural justice. When it comes to the action of blacklisting which is termed as "civil death" it would be difficult to accept the proposition that without even putting the noticee to such a contemplated action and giving him a chance to show cause as to why such an action be not taken, final order can be passed blacklisting such a person only on the premise that this is one of the actions so stated in provisions of NIT. (Para 29) (emphasis supplied)"

11. The respondents in their reply have stated that the ACRs of the petitioner were not up to the mark as for the years 1991, 1997, 1999, she was awarded gradings 'x' whereas for the years 1992, 1998, she was

awarded gradings '?k' and as such, she was granted the benefit of senior pay-scale, senior selection grade and fourth pay band vide order dated 02.06.2016 (Annexure-P/9). According to the respondents, the Scrutiny Committee reconsidered the issue and then amended the earlier order and granted senior pay-scale, selection grade and fourth pay band to the petitioner. However, according to learned counsel for the petitioner, those adverse remarks were never communicated to the petitioner and as such, in light of the law laid down by the Supreme Court in the case of Prabhu Dayal Khandelwal (supra), ignoring those adverse remarks, the benefit can be granted to the petitioner. The Supreme Court in the case of Prabhu Dayal Khandelwal (supra) has observed as under:-

"4. The aforesaid order passed by the Administrative Tribunal, was assailed by the Union Public Service Commission, as also, the Union of India, before the High Court of Calcutta, by filing separate writ petitions. The High Court accepted the prayer made by the Union Public Service Commission as well as the Union of India while disposing of WPCTs Nos. 772 and 803 of 2002, vide its order dated 20-12-2002. Dissatisfied with the above order, the appellant Prabhu Dayal Khandelwal has approached this Court, through the instant civil appeals.

5. Insofar as the issue of non-consideration of the claim of the appellant is concerned, we are satisfied that the proposition of law relevant for the controversy in hand, was declared upon by this Court in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146, wherein a three-Judge Division Bench of this Court, held as under:

"7. It is not in dispute that CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22-9-1997 and the order of adverse remarks dated 9-6-1998. In view of the said order, one obstacle relating to his promotion goes.

8. Coming to the second aspect, that though the benchmark 'very good' is required for being considered for promotion, admittedly the entry of 'good' was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having 'very good' in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report

of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt v. Union of India (2008) 8 SCC 725 relied on by the appellant. Therefore, the entries 'good' if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

6. The aforesaid position of law has again been affirmed by this Court in Sukhdev Singh v. Union of India [(2013) 9 SCC 566], wherein another three-Judge Division Bench of this Court, has concluded as under:

"8. In our opinion, the view taken in Dev Dutt [(2008) 8 SCC 725] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR--poor, fair, average, good or very good--must be communicated to him/her within a reasonable period."

7. In the above view of the matter, we are satisfied that the impugned order [UPSC v. Prabhu Dayal Khandelwal, 2002 SCC OnLine Cal 675] passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated annual confidential reports for the years 1995-1996, 1996-1997 and 1998-1999, wherein the appellant was assessed as "good". In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being "very good", he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid

annual confidential reports.

8. On the issue, whether the representations filed by the appellant against the reports for the years 1995-1996, 1996-1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid annual confidential reports were recorded, it would be too late in the day to require the authorities to adjudicate upon the representations made by the appellant as against the uncommunicated annual confidential reports.

9. In the above view of the matter, we are satisfied, that the respondents ought to be directed to reconsider the claim of promotion of the appellant, to the post of Chief Commissioner of Income Tax, for the vacancies which arose during the years 2000-2001 and 2001- 2002 on the basis of the communicated reports for the years 1997- 1998 and 1999-2000, within a period of three months from today. Ordered accordingly."

In view of the aforesaid, it is clear that action of the respondents taking note of uncommunicated adverse remarks awarded to the petitioner and substituting her dates of grant of senior pay-scale, senior selection grade, and fourth pay band from some subsequent dates is not proper and as such, the order dated 02.06.2016 (Annexure-P/9) in respect of present petitioner is hereby set-aside.

12. The petitioner was indisputably appointed vide order dated 12.02.1985 and thereafter vide order dated 15.06.1987 her services were regularized and rightly granted the benefit of senior pay-scale w.e.f 01.10.1996 taking note of her total length of service from the date of her initial appointment and after completing prescribed period on the said pay- scale, she was entitled to get the benefit of senior selection grade w.e.f. 01.10.2001 in view of the order dated 25.01.2017 (Annexure-RJ/1) as she is having the Ph.D. and in view of the order dated 29.08.2019 (Annexure-P/7) fourth pay band was to be granted to the petitioner after completion of three years of service on senior selection grade and as such, it should have been granted to her w.e.f. 01.01.2006.

13. So far as counting the petitioner's services for grant of senior pay-scale, senior selection grade and fourth pay band is concerned, the co- ordinate Bench of this Court in W.P. No.2742 of 2012 [Dr. Ramesh Chandra Dixit Vs. The State of Madhya Pradesh] and other connected petition has held that for granting the benefits of senior pay-scale, senior selection grade and fourth pay band even the services rendered as an emergency and part time employee shall also be counted and as such, for granting the benefits as claimed by the petitioner, her services shall be counted from her initial date of joining i.e. 12.02.1985.

14. Considering the aforesaid, the action of the respondents is contrary to the orders issued by the State Government from time to time. Accordingly, the order dated 02.06.2016 (Annexure-P/9) in respect of present petitioner is hereby set-aside.

15. Ex consequntia, this petition is allowed directing the respondents to grant the benefits of senior pay-scale, senior selection grade and fourth pay band w.e.f. 01.10.1996, 01.10.2001 and 01.01.2006 respectively.

(SANJAY DWIVEDI) JUDGE

Devashish DEVASHISH MISHRA 2023.06.14 10:29:21 +05'30'