STATE OF M P Vs. SANDHYA PRASAD

JUDGEMENT

(1.) In writ appeals and the writ petition which have been preferred the question arises for consideration is whether the period of service rendered as emergency appointee pursuant to the appointment having been made under Rule 12(5) of M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1967 (hereinafter referred to as "the Rules of 1967) could have been ordered to be counted for conferring the benefit of higher pay scale.

(2.) It is not in dispute that the concerned employees were appointed under Rule 12(5) of the Rules of 1967. Rule 12(5) of the Rules of 1967 provides that if Commission's panel of selected candidates is not available, the posts may be filled by Govt. by emergency appointments, by issuing advertisement inviting applications under the prescribed form, qualifications have also been prescribed. It is provided that as and when the candidates are available duly selected by PSC, such appointees will be removed without notice. Appointment order indicates that appointment was made in the pay scale of Rs. 2200-75-2800-100-4000. It is also not in dispute that the services of concerned employees were ultimately regularized. The State Government did not count the period spent by the employees as emergency appointee for the purpose of grant of higher pay scale, the benefit of which was extended by circular dated 11th of October, 1999 bearing No. F-1/233/99/38-1/99.

(3.) Earlier the cases were filed before the Tribunal. OA No. 1763/2000 filed by Dr. (Smt.) Seema Raizada which was decided vide Order dated 26.2.2001, it was allowed in terms of circulars dated 12.2.92 and 11.10.99. In the matter of Padma Shrivastava (OA No. 1764/2000) decided on 26.2.2001, similar decision was rendered by the Tribunal and benefit was ordered to be extended with effect from the date of initial appointment. Case of Seema Raizada travelled to the Division Bench of this Court in WP No. 4863/2001, same was dismissed vide Order dated 10.8.2005 by the Division Bench comprising of My Lord Hon'ble the Chief Justice R.V. Raveendran (as he then was) and Shantanu Kemkar, J. The decision in the case of Padma Shrivastava was assailed before this Court in WP No. 295/ 2002. Another Division Bench of this Court comprising of Hon'ble Mr. Justice Deepak Verma (as he then was) and Mr. A.K. Saxena, J. dismissed the writ petition vide Order dated 26.9.05. Another WP No. 1017/02 was also dismissed. These were preferred against the decision rendered by the State Administrative Tribunal, the decision of Tribunal was upheld. There are some other decisions rendered by Division Bench. Single Judge sitting at Gwalior in WP No. 6350/06(s) vide Order dated 28.3.08 has also allowed the writ petition filed by Dr. Brijesh Kumar Sharma giving him the similar benefit treating the period spent as emergency appointee for the purpose of grant of higher pay scale. As against which the writ appeal preferred by State bearing No. 528/08 was dismissed by Division Bench of this Court comprising of Shri S. Samvatsar and A.P. Shrivastava, JJ vide order dated 7.5.09. Reliance was placed on various decisions and it was held that there is difference between the conferral of seniority and in concept of counting of the services for the purpose of grant of senior pay scale and the selection grade. The benefit of higher pay scale has to be given counting the service from the date of initial appointment as the appointment was as per rules and has been later on regularized. Yet another Division Bench at Gwalior has also dismissed the writ appeal 65/10 on 1.2.2010. The State of MP has preferred SLP before the Apex Court. The Apex Court dismissed the SLP on the ground of delay in filing the petitions, question of law was left open in the order passed on 12th March, 2008.