Madhya Pradesh High Court
Mohan Singh Thakur vs The State Of Madhya Pradesh on 12 June, 2023
Author: Sanjay Dwivedi
1
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.6920/2017
BETWEEN:-
MOHAN SINGH THAKUR, S/O. LATE BHABOOT
SINGH THAKUR, AGED ABOUT 59 YEARS,
OCCUPATION LABOUR OFFICER IN THE
OFFICE OF THE LABOUR OFFICER, BETUL
(TERMINATED) R/O. 683, INDRA GANDHI WARD,
GAUTAM JI KI MADHIYA, GARHA, DISTRICT
JABALPUR (M.P.)
.....PETITIONER
(BY SHRI SANJAY K. AGRAWAL - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
LABOUR, VALLABH BHAWAN, BHOPAL
(M.P.)
2. LABOUR COMMISSIONER, GOVERNMENT
OF MADHYA PRADESH, 518, NEW MOTI
BUNGALOW, M.G. ROAD INDORE,
DISTRICT INDORE (M.P.)
.....RESPONDENTS
(BY SHRI TAPAN BATHRE - PANEL LAWYER)
................................................................................................................................................
Reserved on: 24.04.2023
Pronounced on: 12.06.2023
This petition having been heard and reserved for orders, coming on
2
for pronouncement this day, the Court pronounced the following:
ORDER
The instant petition is pending since 2017. The pleadings
are complete and with the concurrence of learned counsel for the parties,
who are ready to argue it finally, the petition is heard finally.
2. By this petition filed under Article 226 of the Constitution
of India, the petitioner is claiming the following reliefs:-
"(1) It is, therefore, prayed that this Hon'ble Court may
kindly be pleased to issue direction to the respondent
Authority to pay 6600 grade pay scale in place of 5400
grade pay scale and increments or also given to the
petitioner from the date of joining for which he is
entitled, in the interest of justice.
(1-A) direct the respondents to grant the increments in
accordance with Statutory Rules 22-A(ii).
(1-B) Quash the communication, dated 19.09.2016,
(Annexure P/15) and further the communication, dated
23.07.2016 (Annexure P/16) to the extent it relates to
the recovery of amount from the arrears to be paid to the
petitioner.
(2) It is, therefore, prayed that this Hon'ble Court may
kindly be pleased to call for entire records from the
respondents for the satisfaction of this Hon'ble Court, in
the interest of justice.
(3) To grant any relief, which this Hon'ble Court deem fit
and proper in the interest of justice."
A bare look to the reliefs claimed in the petition, it reveals
that the claim of the petitioner is two-folded, one that instead of granting
Grade Pay of Rs.5400/-, he should have been granted Grade Pay of
Rs.6600/- and second, that the petitioner should also be granted annual
increment.
3. The facts lie in a narrow compass. Suffice it to say that the
petitioner was initially appointed on the post of Assistant Superintendent
Land Record on 13.08.1997 and was posted at District Sagar. Thereafter,
petitioner was confirmed on that post w.e.f. 12.03.2001 and later-on was
promoted to the post of Deputy Director vide order dated 03.03.2003.
The petitioner again appeared in the examination conducted by the
Public Service Commission for the post of Labour Officer and got
selected and appointment was made vide order dated 19.05.2006 on the
post of Labour Officer.
The petitioner was posted at Singroli in the year 2013 and
was continued there till 21.03.2014 but in a trap, he was arrested in
criminal case registered against him. The department suspended him on
22.03.2014 and in the criminal case, he was convicted for the period of
four years and as such he has been terminated from service.
Against the conviction, an appeal was preferred and that
appeal was allowed vide judgment dated 30.08.2017 passed in
Cri.Appeal No.2301/2015 and that judgment was affirmed by the Apex
Court vide order dated 05.07.2018 passed in SLP (Cr.) No.15373/2018.
Consequently, the petitioner was reinstated in service vide order dated
22.12.2018 and posted as Labour Officer at District Jhabua.
4. Sanguinely, learned counsel for the petitioner submitted that
the petitioner is still working on the post of Labour Officer, although
neither any order of his confirmation has been passed nor has any
certificate of the confirmed employee been issued by the respondents.
Not only this, but the respondents did not issue any order extending the
probation period because initially he was appointed on probation for a
period of two years, even that period has not been extended. He
submitted that merely because order of confirmation is not issued in
favour of the petitioner, he cannot be deprived to get the benefit of
service and as such annual increment cannot be withheld by the
respondents. He also submitted that in view of order issued by the
respondents on 06.03.2007 whereby applying the provision of
Fundamental Rule 22-A(ii), his pay has been protected and as such the
pay which was being granted on the post of Deputy Director (Local
Fund Audit) was protected while he was appointed as a Labour Officer.
According to Shri Agrawal, counsel appearing for the petitioner, at the
time of performing duties as Deputy Director (Local Fund Audit), the
petitioner was being granted the Grade Pay of Rs.6600/- and as such it
was to be protected and after joining on the post of Labour Officer, the
respondents have granted him the Grade Pay of Rs.6600/- by fixing him
under the MP Pay Revision Rules, 2009 but later on that Grade Pay was
reduced from Rs.6600/- to Rs.5400/- vide communication dated
19.09.2016.
5. The respondents have filed a reply taking stand therein that
the petitioner is not entitled to get the Grade Pay of Rs.6600/- inasmuch
as Grade Pay of Labour Officer is Rs.5400/- and therefore, he is entitled
to get grade pay of the post on which he is working. The respondents
have also taken a stand that the status of the petitioner was not of
confirmed employee and he is still working as a probationer and
therefore he is not entitled to get any annual increment.
6. A rejoinder has also been filed by the petitioner stating
therein that the petitioner has been granted the benefit of provision of
FR-22-A (ii). He asserted that pursuant to his acquittal in criminal
appeal, which was later-on affirmed by the Supreme Court in SLP
preferred by the State, the petitioner was reinstated in service vide order
dated 22.12.2018 and posted as Labour Officer, Jhabua. It is also stated
that the petitioner was appointed on the post of Labour Officer when he
was working as Deputy Director in the Local Fund Audit Department.
Since, the petitioner participated in the selection process of Labour
Officer with the permission of department, his lien of the post of Deputy
Director carried-forward to the Labour Department and as such he is
entitled to get the benefit of FR-22-A(ii), which was although
withdrawn when he was terminated due to his conviction, but conviction
since set aside, therefore, said benefit stood restored. Ergo, grade pay of
Rs.6600/- was protected and thus it is improper to reduce it to Rs.5400/-.
7. Albeit, an additional return was filed by the respondents, but
could not state anything new and sheer reiterated the stand taken in the
return that the petitioner was working on probation and that probation
has not been extended, therefore, benefit of increment cannot be granted
to him.
8. I have patiently heard the submissions of learned counsel
for the rival parties and meticulously perused the documents available
on record.
9. Indeed, the petitioner was working as Deputy Director in
Local Fund Audit Department and then participated in the process of
recruitment for the post of Labour Officer, that too with the affirmation
of his employer and got selected therein and appointed vide order dated
19.05.2006. Apparently, the petitioner was snared in a trap which
hovered the scudding clouds of conviction, resulting into termination of
his services, but this Court in appeal dispersed those clouds by
acquitting the petitioner, which was also approved by the Apex Court,
therefore, he stood reinstated in service vide order dated 22.12.2018 and
his LPC (Last Pay Certificate) was duly forwarded by Labour Officer,
Betul to Labour Officer, Jhabua vide memo dated 16.01.2019
(Annexure-RJ-3). Essentially, the order of termination since quashed
and petitioner's status was restored, therefore, pay protection order
dated 06.03.2007 (Annexure-P/14) was continued. Although the order of
confirmation was not issued and therefore his status was not of a
confirmed employee, but that does not mean he is not entitled to get the
annual increment.
10. Quite apart, the respondents in their return have taken a
stand that protecting the petitioner's pay and granting him grade pay of
Rs.6600/- which was being paid to him at the time of giving him
appointment on the post of Deputy Director, but later-on new
appointment was given to the petitioner on the post of Labour Officer
and grade pay of Rs.6600/- has been reduced to Rs.5400/- is not proper,
especially in pursuance to the order dated 07.03.2007 (Annexure-P/14)
saying that as per FR-22-A(ii) his pay may be protected. As per the
respondents, the appointment of the petitioner on the post of Labour
Officer is a fresh appointment in Labour Department and therefore
FR-22-A(ii) does not attract and thus has no applicability.
11. Beyond any scintilla of doubt, I too find substance in the
stand of the respondents for the reason that the appointment of the
petitioner on the post of Labour Officer is indubitably anew appointment
and his lien to the post of Deputy Director which was a post of Local
Fund Audit Department and the petitioner was working on the said post,
getting grade pay of Rs.6600/- and after accepting the appointment as
Labour Officer, the lien of the post of Deputy Director in the department
of Local Fund Audit, cannot be continued and maintained considering
the provisions of F.R.22-A. The relevant extract is reproduced
hereunder:-
"FR-22-A(ii) When appointment to the new post does
not involve such assumption, he will draw as initial pay
the stage of the time-scale which is equal to his
substantive pay in respect of the old post, or, if there is
no such stage, the stage next below that pay, plus
personal pay equal to the difference, and in either case
will continue to draw that pay until such time as he
would have received an increment in the time-scale of
the old post, or for the period after which an increment
is earned in the time-scale of the new post, whichever is
less. But if the minimum pay of the time-scale of the
new post is higher than his substantive pay in respect of
the old post, he will draw that minimum as initial pay."
Indeed, the aforesaid provision applies when the lien of the petitioner is
continued on a permanent post occupied by him in a particular
department, but after the change of department and switching over from
one department to another, though of the State Government, his lien is
not maintained on the substantive post initially held by him.
12. In aftermath, the order dated 06.03.2007 giving pay
protection in favour of the petitioner cannot be said infallible and such
pay protection cannot be granted to the petitioner. However, since the
said order has been passed by a government officer and benefit if any
has been granted to the petitioner shall not be recovered from him.
Accordingly, it is directed that the order dated 06.03.2007 may not be
given effect in favour of the petitioner as the benefit of said pay
protection cannot be granted to him, but he is otherwise entitled to get
annual increment even though he has not been given the status of
confirmed employee.
13. The petition is accordingly allowed in part. The exercise of
calculating the arrears, as directed hereinabove, shall be completed
within a period of three months from the date of receipt of copy of this
order and the determined amount of arrears shall be paid to the
petitioner within a further period of 30 days. It needs to be emphasized
that if the said amount is not paid within the stipulated time, then it shall
carry interest @6% per annum till the date of its actual payment.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH KUMAR
SHUKLA
2023.06.13
11:40:38 +05'30'
