W. P. No. 3049/09 (s)
7/05/2010
Shri V. Jayaraman, learned counsel for the petitioners.
Shri Vivek Agrawal, learned Govt. Adv. for the
respondents.
Petitioners were appointed in the Water Resources
Department as an L. D. C. Appointment to the post in
question is governed by the statutory provisions that is the
rules framed under Article 309 of the Constitution, namely
the Madhya Pradesh Irrigation Department (Non-Gazetted
Service) Recruitment Rules, 1969. Under these rules,
L. D. C. is classified as a Class -III post and in Schedule
III, the criterion for appointment to the post of L. D. C. are
contained. To be eligible for appointment for the post of
L. D. C. under the recruitment rule, a person has to be
minimum 18 years of age and should not have completed 28
years of age. The educational qualification prescribed for
appointment to the post in column 5 to the schedule
indicates that a person has to be matriculate and equivalent
examination passed and it is only stated that the preference
should be given to those who will possess the qualification
in the type-writing and appointed to the post if found
eligible. However, a condition is stipulated in the
appointment order of the petitioners, to the effect that
petitioners shall be paid increment only if they will pass the
Hindi Typewriting test from the Board of Secondary
Education or from the recognized Board.
Inter alia contending that the aforesaid condition
stipulated in the appointment order is contrary to the rules of
1969 and by an executive instructions, the statutory
provisions cannot be substituted, petitioners have filed this
petition challenging the order of the respondents.
Shri V. Jayaraman, learned counsel for the petitioners
inviting my attention to the orders passed by this Court in
W. P. Nos. 2415/07 (s) and 2416/07 (s) submitted that when
petitioners are appointed in accordance with the recruitment
rule to the post in question, they have a right to claim the
increment that was applicable to the pay scale at the relevant
time and the increment payable to the petitioner cannot be
denied on the ground that petitioners do not fulfil the
conditions stipulated in the appointment order, which is not
in accordance with the statutory provisions. Learned
counsel points out that the statutory provisions cannot be
substituted by the executive instructions and the executive
instructions contrary to the statutory provisions is illegal,
accordingly, learned counsel prays for interference into the
matter on the aforesaid ground.
Respondents have filed a return and it is stated by the
respondents in the return that by virtue of the certain
circulars issued by the State Govt. , the condition is
stipulated and as the condition stipulated is in accordance
with the policy of the State Govt. , it is submitted that there
is no illegality in the matter.
Placing reliance on the order passed in W. P. No.
8489/03 Ku. Vanita Dayal @ Anita Dayal Vs. State of
M. P. and others and certain observations made by a
Division Bench of this Court in the case of State of M. P.
and others Vs. Smt. Sushma Surana, 2005 (II) MPWN SN
116 , learned counsel for the State emphasized that the
condition for passing the Hindi Typewriting test stipulated
in the appointment is in accordance to law, petitioners shall
not have any grievance. Shri V. Jayaraman, learned counsel
refuted the aforesaid contention and submitted that the case
relied upon by the State Govt. particularly in the case of
Sushma Surana (supra), the statutory provision and
implication of the same have not been taken note of, which
has been considered and decided in the case of Sevakram
Sarankar Vs. State of M. P. and others W. P. No.
17500/03.
Having heard learned counsel for the parties and on
consideration of the facts that have come on record, it is
clear that in the recruitment rule, the only condition and the
qualification prescribed for appointment to the post in
question is that a candidate has to be matriculate or
equivalent and in case, there are two candidates with the
same qualification, preference would be given to those
candidate who has passed the Hindi-typing test. The
knowledge of Hindi-typing is desirable but not essential.
Passing of the typing examination is not a mandatory
requirement when the persons like the petitioners were
appointed to the post. In the recruitment rule, there is no
such requirement of passing the typing examination for
release of increments. Petitioners were appointed in
accordance with the recruitment rules and their increments
should have to be released after completion of one year from
the date of their initial appointment. The benefit of
increment as per the pay scale has to be granted to the
petitioners and the said right cannot be taken away by the
executive instructions. It is a well settled principle of law
that the executive instructions cannot substitute and cannot
run contrary to the statutory provisions. In the present case,
when there is no requirement of passing the typing
examination in the statutory rule, benefit of increment as per
the pay scale cannot be denied to the petitioners and the
condition imposed by the executive instructions is
unsustainable. This question has already been considered
and decided by a Bench of this Court in W. P. No.
17500/2003 and after taking note of the recruitment rules of
1969, petition has to be allowed.
As far as the objection of the respondents and reliance
placed in the cases of Sushma Surana (supra) and Ku.
Vanita Dayal (supra) are concerned, in the said cases, the
conditions imposed in the appointment order is only taken
note of, and the statutory provisions is not taken note of.
That being so, the said judgment will not apply in the facts
and circumstances of the present case, that apart the said
cases pertain to confirmation of a probation after completing
the period of probation and does not pertain to grant of
increment of the pay scale applicable for a post.
In the present case, petitioners having been appointed
in accordance with the statutory provisions, they have a
legal right to seek increment of the pay scale from the date
of their initial appointment.
It is seen from the records that on the basis of an order
passed in W. P. No. 9947/08 (s), one T. C. Mahroliya has
been granted the aforesaid benefit after considering the
benefit granted to another petitioner in W. P. No. 17500/03.
That being so, there is no reason for denying similar benefit
to the petitioners.
Accordingly, this petition is allowed. Impugned action
of the respondents in denying benefit of increment to the
petitioners from the due date is quashed and respondents are
directed to grant benefit of increments to the petitioners in
accordance with the rule from the date of their initial
appointment. The amount of increment be released to the
petitioners and necessary action for conferring the benefit be
taken within a period of two months from the date of receipt
of certified copy of this order. In case, the monetary
benefits be not paid to the petitioners within two months, the
amount due shall be paid along with interest @ 7 % per
annum from the said date i.e. after two months till payment.
Petition stands allowed and disposed of, no order so as
to costs.
(Rajendra Menon)
Judge
Vy/