W.A. No. 299/2010
20.5.2010
Shri Samdarshi Tiwari, GA for State.
For the reasons mentioned in I.A. No. 4625/2010, delay
in filing this appeal is hereby condoned.
Heard on question of admission.
The writ appeal has been preferred as against the order
dated 4.3.2010 passed by Single Bench of this Court in W.P.
No. 17054/2003. The learned Single Judge by the impugned
order has given the benefit in the light of decision rendered in
W.P. No. 10214/2005(s) and W.A. No. 4863/2001 (State of M.P.
And another Vs. Dr. (Smt) Seema Raizada and another). Other
decisions have also been taken into consideration and relief has
been given of counting the period of emergency appointment
for the purpose of conferring the benefit and the claim for grant
of higher pay scale, selection grade or senior selection grade.
However, it has been clarified that the period would not be
counted for the purpose of seniority in the cadre of Asst.
Professor. The writ petition has been allowed in part.
The matter has been delved upon by a Division Bench of
this Court recently in W.A. No. 599/2008 decided on 11.2.2010.
The Division Bench has made the following discussion :-
6. No doubt about it that this Court has
consistently taken the view that such appointees are
entitled for the benefit of higher pay scale by
counting the services spent as emergency appointee.
Emergency appointments are made under Rule 12(5)
of the Rules of 1967 which reads thus :-
"12(5) : Emergency Appointments :- If
Commission's panel of selected candidates is not
available, the posts may be filled by emergency
appointments in the following manners:-
(a) an advertisement shall be issued
by Government;
(b) Applications for emergency
appointments shall be submitted in
the form prescribed in Schedule V.
(c) Applications received shall be
registered and tabulated according
to the following criteria -
Category Qualifications
.................
………………….
The names will be arranged in each sub-category
according to the marks secured by the candidates at
the MA/M.Sc./M.Com.Examination:
Provided if and when Public Service Commission
panel for these subjects is available, these teachers
will be liable to be removed without notice.”
7. It is not in dispute that advertisement was
issued, selection committee was formed which has
considered the cases of the employees, they were
duly qualified for being appointed , their
appointments have continued till their regularization
and they were holding the similar pay scale in which
they were regularized. Appointment was made in the
pay scale not on fixed pay and there was no brake,
they were not appointed as against any leave
vacancy, the appointment was not on purely adhoc
basis without following the procedure, the
appointment was made under the aforesaid rule
12(5).
8. In the light of the aforesaid undisputed facts when
we consider circular dated 12.2.92 issued by the
State Government which has been relied upon by the
Tribunal while rendering decision in case of Seema
Raizada and Padma Shrivastava, a close reading of
the circular dated 12.2.92 indicates that prior service
rendered has to be counted for the purpose of grant
of higher pay scale and selection grade pay scale on
following conditions;
(i) that the post held must be equivalent and
carrying the same pay scale;
(ii) the qualifications of the post held should
not be less than the prescribed qualification by the
UGC for the post of lecturer;
(iii) at the time of appointment on the earlier
post of which service is to be counted an incumbent
must possess the minimum qualification prescribed
by the UGC;
(iv) appointment on the post must have been
made by the prescribed selection procedure by the
State Government; and
(v) the appointment should not be purely adhoc
or as against leave vacancy for less than one year.
When we apply the aforesaid five conditions in
the instant case, one by one, it is not disputed that
appointment of the employees was on the same post
and in the same pay scale . Thus, the first condition
stands satisfied. When we come to second condition
as to the qualifications prescribed for the post, the
post held was the same post and the qualifications
possessed by incumbents were not less than that
prescribed by the UGC, it is not the case of State
that qualifications prescribed in advertisement were
less. Thus, second condition also stands fulfilled.
When we come to IIIrd condition, the incumbent was
holding the minimum qualification prescribed by UGC
at the time of appointment on emergency basis, they
were holding the qualifications has also not been
disputed. When we come to fourth condition it is
admitted that selection was made as prescribed
under Rule 12(5) of the Rules of 1967, since the
appointment was made under Rule 12(5), the
aforesaid IVth condition also stands satisfied. When
we examine fifth and last condition it is apparent that
appointment was made on emergency basis not on
purely adhoc basis, it was not against any leave
vacancy. For the purpose of appointment, prescribed
procedure under Rule 12(5) was followed,
appointment was made under the rules. Rules provide
for emergency appointment and prescribed the
procedure for that which was followed and ultimately
the services were regularized. The State Government
has taken the decision vide circular dated 12.2.92 for
counting of such services for the purpose of higher
pay scale and for selection pay scale, the benefit of
which could not have been denied to the employees,
thus, relief has to be given on the basis of the
aforesaid circular dated 12.2.92. Though it is not
necessary to go into the DO of the MP PSC in view of
circular dated 12.2.92, but MP PSC has clearly
mentioned in its DO dated 25.12.98 thus :-
” The Commission after seeking legal opinion on
clause 1(e), has decided to include service rendered
in adhoc capacity for counting of past service for
placement in Senior Scale/Selection Grade, provided
that the following three conditions are fulfilled :-
“(a) The adhoc service was of more than one year
duration;
(b) the incumbent was appointed on the
recommendation of duly constituted
Selection Committee, and
(c) The incumbent was selected to the
permanent post in continuation to the
adhoc service, without any brake.”
The Commission has taken the above decision.
The aforesaid three requirements also stand
satisfied in the instant case. The instant case stand on
better footing as the service rendered was not purely
adhoc, but it was under the rules as an emergency
appointee, even adhoc appointee in case has
continued for more than one year duration and was
selected by duly constituted selection committee and
was later on selected to the permanent post in
continuation to the adhoc service without any brake,
his services has to be counted for placement in Senior
Scale/Selection Grade as per aforesaid decision of
PSC. In the instant case, the case of employees is
much better. Thus, they could not have been denied
the benefits of counting of their services rendered as
emergency appointee and their past services ought to
have been counted for the placement in Senior Scale/
Selection Grade, we find that decision rendered by
the single Bench to be in accordance with law and we
do not find any ground to differ from the view taken
by different Division Benches of this Court in several
matters dismissing the writ appeals assailing the
order passed by the single Bench or the writ petition
preferred against the order passed by State
Administrative Tribunal.
9. Shri Deepak Awasthy, learned GA has relied upon
Division Bench decision of this Court in Saroj
Goswami vs. State of M.P. and others (supra) in
which petitioner was appointed on adhoc basis on a
fixed pay of Rs.700/-. Division Bench of this Court
held that fixed pay happened to be equivalent to the
initial pay in a time scale,i.e.Rs.700/-Rs.1600/- does
not mean that adhoc service was on a time scale. It
was laid down by Division Bench of this Court that an
incumbent is neither entitled for benefit of seniority
nor pay scale. In the instant case ratio of the
aforesaid decision is not at all attracted as seniority
has not been given in any of the order passed by the
single Bench, the benefit given is that of counting of
the past services for the purpose of placement in the
Senior Scale/Selection Grade and the said benefit is
available as per Government circular dt. 12.2.1992.
In the aforesaid decision of Saroj Goswami vs. State
of M.P. and others (supra) the appointment was
made on adhoc basis which was not under the rules
whereas the appointment in the instant cases was
under the Rules of 1967 and ultimately incumbents
have been regularized. The appointment in the
instant case was also on the pay scale, in the
aforesaid decision appointment was on fixed pay,
thus, decision is distinguishable. Even after following
the aforesaid decision in its pith and substance, no
dent is caused to the employees of the instant case as
the relief is totally different, thus, ratio of said
decision is not attracted.
10. Resultantly, we find no merits in the writ appeals
preferred by the State Government. The same are
dismissed. They are bound to count the services
rendered by the employees as emergency appointee
for placement of Senior Scale/Selection Grade. WP
No. 24503/03 stands allowed. No costs.
Shri Deepak Awasthi, learned Government Advocate has
relied upon the decision of State of Haryana Vs. Haryana
Veterinary & AHTS Association and another – (2000) 8
SCC 4 in which the Haryana Govt. circular dated 2.6.1989 as
modified by circular dated 16.5.1990, which provides
expression ‘regular service’ came for consideration before their
Lordships service rendered on adhoc basis dehors the
recruitment rules, was not includible in regular service. The
same is not the position in the instant case. The directives
issued by the PSC and Govt. circular which take care of the
period which was spent by the petitioner as emergency
appointment, even for the period of adhoc appointment, the
State Government has issued the circular for counting the
service for the purpose of higher pay scale, thus the decision is
distinguishable. In another decision which has been relied upon
of State of Punjab and others Vs. Ishar Singh and others –
(2002) 10 SCC 674, decision of State of Haryana Vs.
Haryana Veterinary & AHTS Association and another
(supra) has been referred to. The said decision is also
distinguishable, as such we do not find any ground to take a
different view.
Writ appeal being devoid of merit is hereby dismissed.
No costs.
(Arun Mishra) (S.C.Sinho)
Judge Judge
PB