STATE OF M P Vs. RAMANI BAI BHAGAT

JUDGEMENT

(1.) This order shall govern the disposal of both these two writ appeals which have been preferred against the orders passed in two writ petitions bearing No. 5050/2008 and 5151/2008 on the same date i.e. 21.8.2009. The facts of these two cases and the issue involved are similar but because of two orders were passed separately against which present two appeals have been preferred which are being decided by this common order. The aforesaid two writ appeals under section 2(1) of Madhya Pradesh Uchcha Nyalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 have been filed assailing the order dated 21.8.2009 passed by the learned Single Judge in Writ Petition No. 5050/2008 and 5151/2008. By the said order, it is directed that the petitioners would be entitled to get regular increments after one year from the date of their initial appointment. It is further directed that the respondents would fix the pay after expiry of one year from the date of their initial appointment and arrears shall also be paid. In the aforesaid two writ petitions, the facts remain that the petitioners were appointed as Assistant Grade III and joined their duties. In the order of appointment, it was specified that the petitioners ought to have passed the Hindi typing examination within the period of two years, otherwise their services may be terminated. The said period was extended time to time. As the petitioners could not have passed Hindi Typing Examination, and on completion of the age of 40 years, the increments were allowed to him with effect from 4.3.1993 in view of the conditions so specified in the order of appointment. Learned Single Judge referring the Recruitment Rule 8 and Schedule III of M.P. Irrigation Department (Non-Gazetted) Service Recruitment Rules, 1969 (for brevity it be called "the Rules of 1969") observed that the qualification indicating eligibility prescribed in Rules is to pass the matriculation or equivalent examination and preference to those who possess the certificate in typing. In such circumstances, it is held that under the statutory rules passing of typing examination was not the essential qualification for the post of Lower Division Clerk (Assistant Grade III), therefore, denial of increments is not in conformity to the Rules of 1969. However, direction has been issued to pay the regular increments with arrears.

(2.) Learned counsel appearing on behalf of the appellant-State has contended that learned Single Judge while adjudicating the issue has referred the judgment of this Court in the case of Dongar Singh Pawar v. State of M.P. and others, 2006 3 MPHT 352, and distinguished the judgment of Division Bench of this Court in the case of State of M.P. v. Smt. Sushma Surana, 2005 2 MPWN 116. It is submitted that the judgment of Dongar Singh Pawar , has been further considered by the Division Bench of this Court in the case of State of M.P. and others v. Vinod Mohan Shrivastava, 2008 ILR(MP) 1869, whereby held that irrespective of the Rules framed under Article 309 of the Constitution of India if any specific bar providing a specific stipulation regarding the minimum eligibility criteria has been prescribed in the appointment order, it is permissible under the law. However, distinguishing the judgment of Dongar Singh Pawar , and relying upon the judgment of the Hon'ble apex Court rendered by it in the case of State of Rajasthan and others v. Rajendra K. Verma, 2004 13 SCC 706, held that the judgment of Dongar Singh Pawar , does not lay down the correct proposition of law and in such cases the payment of increments on attaining the age of 40 years granted by the State Government to the petitioners was found justified. In this view of the matter, it is urged that the judgment so delivered by the learned Single Judge is based upon the judgment of Dongar Singh Pawar , which has already been overruled by this Court, however, the order impugned may be set aside allowing this appeal.

(3.) Per contra, Shri C.P. Singh and Shri S.P. Sharma, learned counsel representing the petitioners have argued in support of the findings so recorded by the learned Single Judge and submitted that the appointment of petitioner on the post of Lower Division Clerk (Assistant Grade III) was made after due process of law on possessing requisite qualification prescribed in rule 8 and Schedule III of the Rules of 1969. The Rules of 1969 have been framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, however, executive instruction, if any, issued showing additional qualification cannot have overriding effect. In fact the regular increment ought to be automatically granted as per the Fundamental Rule 24, until withheld by an order of competent authority. In such circumstances, the order passed by the learned Single Judge is liable to be upheld. Learned counsel has placed reliance on the Division Bench decision of this Court rendered in the case of Jageshwar v. State of M.P.,1982 MPWN 275; State of M.P. and another v. Onkar Lal s/o Bisan Khande, 2011 3 MPLJ 403 and in the case of State of M.P. v. Smt. Savita Naulakha,2012 1 MPWN 15. It is submitted that in the case of Jageshwar , this Court held that if the lower division clerk possesses the qualification so prescribed under the Rules, termination by virtue of the additional qualification specified in the circular is not permissible under the law. It has further been held that the qualification specified by executive instructions cannot be given overriding effect to the Rules framed in exercise of powers under Article 309 of the Constitution of India. The aforesaid judgment has not been taken note in the later judgment of Vinod Mohan Shrivastava . Thus, the judgment of Vinod Mohan Shrivastava , does not lay down the correct proposition of law because the earlier Division Bench judgment has not been considered. It is further submitted that recently the Division Bench of this Court in the case of Onkar Lal , and Smt. Savita Naulakha , has followed the view taken in the case of Jageshwar . However, the judgment of Vinod Mohan Shrivastava , cannot be regarded as good law and liable to be ignored. It is also submitted that the qualification so prescribed in the Rules cannot be overrided by executive instructions, however, regular increments cannot be denied. Thus, learned Single Judge has rightly directed for grant of the increments and the arrears thereof, therefore, the order impugned may be upheld.