Madhya Pradesh High Court
Harihar Prasad Tiwari vs The State Of Madhya Pradesh on 6 February, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 6 th OF FEBRUARY, 2025
WRIT PETITION No. 32124 of 2023
HARIHAR PRASAD TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rahul Mishra - Advocate for the petitioner.
Shri Manu V. John - Panel Lawyer for the respondent - State.
ORDER
The present petition has been filed challenging the orders of recovery
Annexure P-4 and P-5, whereby the time bound financial up-gradations
given to the petitioner have been withdrawn and recovery has been ordered
as a consequence thereof to the tune of Rs.6,67,613/- which includes
principal amount of Rs.4,37,315/- and interest of Rs.2,30,298/-.
2. It is contended that the petitioner is a retired employee and not only
the recovery is bad in law in view of the judgment of the Supreme Court in
the case of State of Punjab v. Rafiq Masih, 2015 (4) SCC 334, but that the
right of the work charge in contingency paid employees to get time bound
financial up-gradation has been settled by this Court time and again. It is also
contended that so far the issue of grant of time bound financial up-gradations
in terms of Kramonati/financial up-gradation is concerned, the same was
decided by this Court in the case of Tejulal Yadav vs. State of M.P. and
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others ILR (2009) MP 1326. The said aspect is no longer res-integra.
3. So far as the question of third time bound up-gradation is
concerned, it is contended that Co-ordinate Bench in W.P. No.4943/2023 has
already considered the Circular Annexure R-1 relied by the respondents and
has held as under:-
"Learned counsel for the petitioner submits that the circular issued
by the State Government dated 21.09.2016 (Annexure-P/7) has
already been set aside by this Court vide order dated 16.05.2018
passed in W.P. No.461/2018 (Gendalal and Ors. Vs. The State of
Madhya Pradesh and Ors.) and that order of writ Court has been
affirmed by the Division Bench in a writ appeal. He submits that
the Court has set aside the circular saying that there cannot be any
discrimination with effect from the date of granting the benefit of
time scape of pay to the employee of work charged contingency
establishment and they are also entitled to get the said benefit from
the same date from which regular employee is being granted the
time scale of pay. The order rejecting the claim of the petitioner
taking shelter of policy dated 21.09.2016 and granting the benefit
w.e.f. 01.01.2016 is illegal.
However, Shri Soni learned counsel appearing for the
respondents/State did not dispute with regard to the order passed
by the writ Court setting aside the policy dated 21.09.2016 and
also the order passed by the Division Bench affirming the order
passed by the writ Court in W.P. No.461/2018.
Since the policy dated 21.09.2016 is set aside by this Court saying
that the employee of work charged contingency establishment
would also be entitled to get the benefit of time scale of pay from
the same date when other regular employees were granted the
benefit, therefore, I am inclined to set aside the impugned order
dated 05.12.2022 (Annexure-P/4). Accordingly, it is set aside
directing respondent No.3 to consider the claim of the petitioner
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and grant him the benefit of time scale of pay in pursuance to the
policy of time scale of pay which is made effective w.e.f.
01.04.2006. As such, the petition is disposed of.
The aforesaid exercise be completed by the said authority taking
note of the law laid down by this Court in case of Gendalal (supra)
within a period of three months from the date of submitting a copy
of this order.
With the aforesaid, this petition is disposed of."
4. In view of the aforesaid, the right of the petitioner to claim time
bound up-gradation cannot be disputed as the same has been settled by this
Court time and again.
5 . Per contra, learned Panel Lawyer for the State has tried to defend
the recovery on the basis of some undertaking. However, firstly the said
undertaking belongs to fixation of the petitioner in accordance with Seventh
Pay Commission Pay Scales, which is not the issue in dispute in the present
case as recovery is not based on that and secondly, on the facts the petitioner
has been found entitled to receive first, second and third time bound up-
gradations. Therefore, the undertaking is totally irrelevant for the purpose of
present case.
6. Consequently, the recovery ordered against the petitioner vide
Annexure P-4 and P-5 stands quashed. The petitioner is held entitled to time
bound up-gradations and the order Annexure P-3 in that regard stands
restored.
7. If any recovery has already been made, the same shall be refunded
to the petitioner within a period of two months, failing which it will carry
interest @ 6% per annum from the date of this order.
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8. If the petitioner submits a representation for Third Time Scale of
Pay, that shall be considered in terms of the policy and in terms of the
judgment of the Co-ordinate Bench in W.P. No.4943/2023.
9. With the aforesaid, petition is disposed of.
(VIVEK JAIN)
JUDGE
rj
