Asha Saxena Vs. State of M.P. & Ors.  INSC 826 (7 May 2008)
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 3408 OF 2008 (Arising out of SLP(C) No.18881/2006) ASHA SAXENA ..
ORDER Leave granted.
The appellant herein was appointed
as a Lecturer in the Government Girls' Higher Secondary School, Mama Ka Bazar,
Gwalior, Madhya Pradesh, on 19.9.1981. Prior to entry into service, the
appellant had in 1972 acquired B.Ed.
Degree. According to the
appellant, at the time of entry into service she was entitled to two advance
increments in accordance with a Circular issued by the State Government on
21.9.1974, which reads as follows:
"Pointwise clarification of
the queries born in connection with Pandey Commission Revised Pay Scales
fixation is as follows:
1 Benefit of advance increment to
trained teachers from Revised Pay Scales:
-2- Two increments were given to
trained teachers in Unified Revised Pay Scales and from trained person on the
post of teacher at the time of initial appointment allowing advance increments
orders wise for fixing their initial pay Rs.95/- in 90-170.
It has been decided regarding
three advance increments to ladies on first appointment and two advance
increments on account of being trained, if any teacher gets training on his own
expense advance increments shall be payable to him/her.
On the basis of this decision
advance increments are to be allowed in Revised Pay Scale.
Similarly if any person got
training at his/her own expense before entry into Government service, he/she
should also be allowed to advance increments in initial pay at the time of
So far as the question of allowing
three advance increments to lady teachers is concerned, it is clarified that
from Revised Pandey Pay Scale the tradition of giving three advance increments
to ladies on appointment to the post of teacher is dispensed with.
2. Employees of local Institutions
Schools taken over by Government the services under the local institutions are
to be considered for weightage and taken over teachers working in local
institutions. From dated 1.10.1963 and 26.10.1965 on being under Government
control the need for allowing services weightage on pay fixation in Revised Pay
-3- Because at the time of
absorption services rendered by the teachers in question in local bodies were
allowed for pay fixation, service of this period according to M.P. Revised Pay
Rule 73, their services for local bodies be accepted as a continuous service.
By the name and order of The
Governor of Madhya Pradesh Sd/-"
It is the appellant's case that
since she was denied the said benefit she made several representations to the
concerned authorities which did not meet with any positive response.
Accordingly, on 4.5.2001, she filed an application, being O.A. No. 477/2001,
before the State Administrative Tribunal of Madhya Pradesh, Gwalior Bench, for
being given the benefit of two advance increments and the payment of arrears
accrued therefrom. The Tribunal by its order dated 17.4.2002 allowed the
application and directed the respondents to re-fix the pay of the appellant
after granting two advance increments and to also make payment of the arrears
within three months from the date of receipt of the order.
Subsequently, without implementing
the order of the Tribunal, the respondents filed a writ application before -4-
the High Court on 25.2.2005, being Writ Petition (S) No. 714/2005. The High
Court took up the writ application for consideration, along with several other
writ applications, and, ultimately, by its judgment and order dated 23.3.2006
allowed the writ application upon holding that those petitioners who had
acquired the B.Ed. or B.T.I. Degree before entering into service would not be
entitled to the benefit of two advance increments, having regard to amendment of
the Rules with effect from 17.6.1993. As far as the appellant herein was
concerned, except for recording the submission made by the counsel for the
State of Madhya Pradesh to the effect that the Circular of 21.9.1974 had been
subsequently withdrawn by a Circular dated 18.12.1975, nothing further has been
said about the subsequent Circular and the entire judgment was focussed upon
the subsequent amendments, and, in particular, the amendment of 1993. In fact,
even the Circular of 18.12.1975 referred to and possibly relied upon by the
High Court, was not on record nor does it ever seem to have been produced
either before the Tribunal or the High Court. It has not also been produced
before this Court. On the date when the appellant was appointed, the Circular of
21.9.1974, therefore, appears to have been very much in force as was considered
--5- and pointed out by another Division Bench of the Madhya Pradesh High
Court, Gwalior Bench, which directed that the benefit of the said Circular
dated 21.9.1974 be made available to the writ petitioners who were before the
Even before the said Division
Bench a question had been raised as to whether the Circular of 21.9.1974 had
been superseded or not, but learned counsel appearing for the State of Madhya
Pradesh could not enlighten the Court in that regard.
Having regard to the above we are
of the view that the High Court should not have relied merely upon the
submission made on behalf of the State of Madhya Pradesh that the Circular of
21.9.1974 had been withdrawn by a subsequent Circular dated 18.12.1975 and
proceeded with the matter, particularly when the said Circular dated 18.12.1975
was never even produced before the Court.
Since the said Circular was not
produced either before the Tribunal or before the High Court or even before us,
we do not think that any further opportunity is required to be given in that
Accordingly, we allow this appeal
and set aside the impugned judgment of the Madhya Pradesh High Court to --6-
that extent only. We direct that the appellant will be entitled to the benefit
of the Circular of 21.9.1974 and the benefits which were directed to be given
to her in terms of the order of the State Administrative Tribunal stand
restored. The time for making payment of arrears is extended by a period of six
months from date.
There shall be no order as to
(MUKUNDAKAM SHARMA) NEW DELHI;
MAY 7, 2008.