State of Madhya
Pradesh & Ors. Vs. Satyavrata Taran
CIVIL APPEAL NO.10554
OF 2011 (Arising out of SLP(C) No. 16906 of 2010)
CIVIL APPEAL NO.10555
OF 2011 (Arising out of SLP(C) NO. 16918 of 2010)
CIVIL APPEAL NO.10556
OF 2011 (Arising out of SLP(C) NO. 16920 of 2010)
CIVIL APPEAL NO.10557
OF 2011 (Arising out of SLP(C) NO. 16928 of 2010)
CIVIL APPEAL NO.10558
OF 2011 (Arising out of SLP(C) NO. 16932 of 2010)
CIVIL APPEAL NO.10559
OF 2011 (Arising out of SLP(C) NO. 16934 of 2010)
CIVIL APPEAL NO.10560
OF 2011 (Arising out of SLP(C) NO. 16935 of 2010)
CIVIL APPEAL NO.10561
OF 2011 (Arising out of SLP(C) NO. 16936 of 2010)
CIVIL APPEAL NO.10562
OF 2011 (Arising out of SLP(C) NO. 16937 of 2010)
CIVIL APPEAL NO.10563
OF 2011 (Arising out of SLP(C) NO. 16938 of 2010)
CIVIL APPEAL NO.10564
OF 2011 (Arising out of SLP(C) NO. 16941 of 2010)
CIVIL APPEAL NO.10565
OF 2011 (Arising out of SLP(C) NO. 16942 of 2010)
CIVIL APPEAL NO.10566
OF 2011 (Arising out of SLP(C) NO. 16946 of 2010)
CIVIL APPEAL NO.10567
OF 2011 (Arising out of SLP(C) NO. 16947 of 2010)
CIVIL APPEAL NO.10568
OF 2011 (Arising out of SLP(C) NO. 16948 of 2010)
CIVIL APPEAL NO.10569
OF 2011 (Arising out of SLP(C) NO. 16949 of 2010)
CIVIL APPEAL NO.10570
OF 2011 (Arising out of SLP(C) NO. 16950 of 2010)
CIVIL APPEAL NO.10571
OF 2011 (Arising out of SLP(C) NO. 16951 of 2010)
CIVIL APPEAL NO.10572
OF 2011 (Arising out of SLP(C) NO. 16953 of 2010)
CIVIL APPEAL NO.10573
OF 2011 (Arising out of SLP(C) NO. 16955 of 2010)
CIVIL APPEAL NO.10574
OF 2011 (Arising out of SLP(C) NO. 16956 of 2010)
CIVIL APPEAL NO.10575
OF 2011 (Arising out of SLP(C) NO. 16957 of 2010)
CIVIL APPEAL NO.10576
OF 2011 (Arising out of SLP(C) NO. 16958 of 2010)
CIVIL APPEAL NO.10577
OF 2011 (Arising out of SLP(C) NO. 16964 of 2010)
CIVIL APPEAL NO.10578
OF 2011 (Arising out of SLP(C) NO. 16965 of 2010)
CIVIL APPEAL NO.10579
OF 2011 (Arising out of SLP(C) NO. 16967 of 2010)
CIVIL APPEAL NO.10580
OF 2011 (Arising out of SLP(C) NO. 16971 of 2010)
CIVIL APPEAL NO.10581
OF 2011 (Arising out of SLP(C) NO. 16972 of 2010)
CIVIL APPEAL NO.10582
OF 2011 (Arising out of SLP(C) NO. 16973 of 2010)
CIVIL APPEAL NO.10583
OF 2011 (Arising out of SLP(C) NO. 16978 of 2010)
CIVIL APPEAL NO.10584
OF 2011 (Arising out of SLP(C) NO. 16981 of 2010)
CIVIL APPEAL NO.10585
OF 2011 (Arising out of SLP(C) NO. 16984 of 2010)
CIVIL APPEAL NO.10586
OF 2011 (Arising out of SLP(C) NO. 16985 of 2010)
CIVIL APPEAL NO.10587
OF 2011 (Arising out of SLP(C) NO. 16986 of 2010)
CIVIL APPEAL NO.10588
OF 2011 (Arising out of SLP(C) NO. 16987 of 2010)
CIVIL APPEAL NO.10589
OF 2011 (Arising out of SLP(C) NO. 16990 of 2010)
CIVIL APPEAL NO.10590
OF 2011 (Arising out of SLP(C) NO. 16992 of 2010)
CIVIL APPEAL NO.10591
OF 2011 (Arising out of SLP(C) NO. 16995 of 2010)
CIVIL APPEAL NO.10593
OF 2011 (Arising out of SLP(C) NO. 17033 of 2010)
CIVIL APPEAL NO.10594
OF 2011 (Arising out of SLP(C) NO. 17043 of 2010)
CIVIL APPEAL NO.10595
OF 2011 (Arising out of SLP(C) NO. 17044 of 2010)
CIVIL APPEAL NO.10596
OF 2011 (Arising out of SLP(C) NO. 17045 of 2010)
CIVIL APPEAL NO.10597
OF 2011 (Arising out of SLP(C) NO. 17046 of 2010)
CIVIL APPEAL NO.10600
OF 2011 (Arising out of SLP(C) NO. 17048 of 2010)
CIVIL APPEAL NO.10601
OF 2011 (Arising out of SLP(C) NO. 17049 of 2010)
CIVIL APPEAL NO.10602
OF 2011 (Arising out of SLP(C) NO. 17051 of 2010)
CIVIL APPEAL NO.10603
OF 2011 (Arising out of SLP(C) NO. 17052 of 2010)
CIVIL APPEAL NO.10604
OF 2011 (Arising out of SLP(C) NO. 17053 of 2010)
CIVIL APPEAL NO.10605
OF 2011 (Arising out of SLP(C) NO. 17054 of 2010)
CIVIL APPEAL NO.10606
OF 2011 (Arising out of SLP(C) NO. 17055 of 2010)
CIVIL APPEAL NO.10607
OF 2011 (Arising out of SLP(C) NO. 17057 of 2010)
CIVIL APPEAL NO.10608
OF 2011 (Arising out of SLP(C) NO. 17058 of 2010)
CIVIL APPEAL NO.10609
OF 2011 (Arising out of SLP(C) NO. 17059 of 2010)
CIVIL APPEAL NO.10610
OF 2011 (Arising out of SLP(C) NO. 17060 of 2010)
CIVIL APPEAL NO.10613
OF 2011 (Arising out of SLP(C) NO. 17061 of 2010
CIVIL APPEAL NO.10614
OF 2011 (Arising out of SLP(C) NO. 17063 of 2010)
CIVIL APPEAL NO.10616
OF 2011 (Arising out of SLP(C) NO. 17075 of 2010)
CIVIL APPEAL NO.10617
OF 2011 (Arising out of SLP(C) NO. 17165 of 2010)
CIVIL APPEAL NO.10618
OF 2011 (Arising out of SLP(C) NO. 17190 of 2010)
CIVIL APPEAL NO.10621
OF 2011 (Arising out of SLP(C) NO. 17195 of 2010)
CIVIL APPEAL NO.10622
OF 2011 (Arising out of SLP(C) NO. 17198 of 2010)
CIVIL APPEAL NO.10623
OF 2011 (Arising out of SLP(C) NO. 17199 of 2010)
CIVIL APPEAL NO.10624
OF 2011 (Arising out of SLP(C) NO. 17200 of 2010)
CIVIL APPEAL NO.10625
OF 2011 (Arising out of SLP(C) NO. 17201 of 2010)
CIVIL APPEAL NO.10626
OF 2011 (Arising out of SLP(C) NO. 17202 of 2010)
CIVIL APPEAL NO.10627
OF 2011 (Arising out of SLP(C) NO. 17203 of 2010)
CIVIL APPEAL NO.10629
OF 2011 (Arising out of SLP(C) NO. 17204 of 2010)
CIVIL APPEAL NO.10630
OF 2011 (Arising out of SLP(C) NO. 17205 of 2010)
CIVIL APPEAL NO.10631
OF 2011 (Arising out of SLP(C) NO. 17207 of 2010)
CIVIL APPEAL NO.10632
OF 2011 (Arising out of SLP(C) NO. 17208 of 2010)
CIVIL APPEAL NO.10633
OF 2011 (Arising out of SLP(C) NO. 17210 of 2010)
CIVIL APPEAL NO.10634
OF 2011 (Arising out of SLP(C) NO. 17211 of 2010)
CIVIL APPEAL NO.10635
OF 2011 (Arising out of SLP(C) NO. 17212 of 2010)
CIVIL APPEAL NO.10636
OF 2011 (Arising out of SLP(C) NO. 17214 of 2010)
CIVIL APPEAL NO.10637
OF 2011 (Arising out of SLP(C) NO. 17221 of 2010)
CIVIL APPEAL NO.10638
OF 2011 (Arising out of SLP(C) NO. 17222 of 2010)
CIVIL APPEAL NO.10639
OF 2011 (Arising out of SLP(C) NO. 17227 of 2010)
CIVIL APPEAL NO.10640
OF 2011 (Arising out of SLP(C) NO. 17241 of 2010)
CIVIL APPEAL NO.10641
OF 2011 (Arising out of SLP(C) NO. 17244 of 2010)
CIVIL APPEAL NO.10642
OF 2011 (Arising out of SLP(C) NO. 17245 of 2010)
CIVIL APPEAL NO.10643
OF 2011 (Arising out of SLP(C) NO. 17246 of 2010)
CIVIL APPEAL NO.10644
OF 2011 (Arising out of SLP(C) NO. 17247 of 2010)
CIVIL APPEAL NO.10645
OF 2011 (Arising out of SLP(C) NO. 17248 of 2010)
CIVIL APPEAL NO.10646
OF 2011 (Arising out of SLP(C) NO. 17249 of 2010)
CIVIL APPEAL NO.10647
OF 2011 (Arising out of SLP(C) NO. 17250 of 2010)
CIVIL APPEAL NO.10648
OF 2011 (Arising out of SLP(C) NO. 17252 of 2010)
CIVIL APPEAL NO.10649
OF 2011 (Arising out of SLP(C) NO. 17253 of 2010)
CIVIL APPEAL NO.10650
OF 2011 (Arising out of SLP(C) NO. 17256 of 2010)
CIVIL APPEAL NO.10651
OF 2011 (Arising out of SLP(C) NO. 17270 of 2010)
CIVIL APPEAL NO.10652
OF 2011 (Arising out of SLP(C) NO. 17277 of 2010)
CIVIL APPEAL NO.10653
OF 2011 (Arising out of SLP(C) NO. 17279 of 2010)
CIVIL APPEAL NO.10654
OF 2011 (Arising out of SLP(C) NO. 17280 of 2010)
CIVIL APPEAL NO.10655
OF 2011 (Arising out of SLP(C) NO. 17283 of 2010)
CIVIL APPEAL NO.10657
OF 2011 (Arising out of SLP(C) NO. 17616 of 2010)
CIVIL APPEAL NO.10592
OF 2011 (Arising out of SLP(C) NO. 20126 of 2010)
CIVIL APPEAL NO.10611
OF 2011 (Arising out of SLP(C) NO. 20127 of 2010)
CIVIL APPEAL NO.10615
OF 2011 (Arising out of SLP(C) NO. 20128 of 2010)
CIVIL APPEAL NO.10656
OF 2011 (Arising out of SLP(C) NO. 20129 of 2010)
CIVIL APPEAL NO.10664
OF 2011 (Arising out of SLP(C) NO. 3754 of 2011)
CIVIL APPEAL NO.10658
OF 2011 (Arising out of SLP(C) NO. 3944 of 2011)
CIVIL APPEAL NO.10659
OF 2011 (Arising out of SLP(C) NO. 3945 of 2011)
CIVIL APPEAL NO.10662
OF 2011 (Arising out of SLP(C) NO. 3947 of 2011)
CIVIL APPEAL NO.10661
OF 2011 (Arising out of SLP(C) NO. 3948 of 2011)
CIVIL APPEAL NO.10660
OF 2011 (Arising out of SLP(C) NO. 3949 of 2011)
CIVIL APPEAL NO.10663
OF 2011 (Arising out of SLP(C) NO. 3952 of 2011)
J U D G M E N T
H.L. Dattu, J.
Delay condoned.
Leave granted.
1.
The
present batch of appeals, by way of special leave, arises out of a common Order
dated 11.02.2010 passed by the Madhya Pradesh High Court and raises an identical
question of law and facts for our consideration and decision. They are, therefore,
being heard together and disposed of by this common Judgment and Order.
2.
The
common issue before us, in these appeals, can be summarized thus: Whether the Assistant
Professors appointed through different means, modes and sources including emergency
appointees in terms of Rule 13(5) of the Madhya Pradesh Educational Service (Collegiate
Branch) Recruitment Rules, 1967 are entitled to claim the benefit of the services
rendered by them prior to their regularization for grant of senior/selection grade
pay scales.
3.
All
these appeals are directed against the common Order dated 11.02.2010 of the High
Court of Madhya Pradesh in Writ Appeal No. 599 of 2008 and other connected matters,
whereby the writ appeals, filed by the appellants challenging the grant of senior
scale/selection grade benefit to the respondents, by counting their period of service
rendered as emergency appointees, were dismissed.
4.
All
the matters pertain to grant of senior/selection grade pay scales and for the sake
of convenience, we may note such facts as emerging from record of the Special Leave
Petition (C) No.16906 of 2010. The respondent was appointed on the post of Assistant
Professor on emergency basis vide Appointment Order dated 14.12.1987 under Rule
13(5) of Recruitment Rules, 1967 with an express condition of immediate termination
of his emergency appointment, without notice, on the availability of Public
Service Commission's panel of selected candidates. Subsequently, the respondent
had cleared Public Service Commission Examination and consequently, as per the
condition of his appointment order, his services were regularized vide Order
dated 02.09.1993 under M.P. Educational Service (Collegiate branch) Recruitment
Rules, 1990 (hereinafter referred to as "Recruitment Rules, 1990").
In the meantime, the State
Government had issued a Circular dated 12.02.1992 for addition of period of
service rendered by teachers, prior to their service in the present College or
University as Assistant Professor for conferring the benefit of
senior/selection grade pay scale but subject to certain conditions.
The respondent had
made several representations to the State Government for counting his period of
service as emergency appointee for determination of benefit of the senior/
selection grade pay scale, but the same were not replied. Subsequently, the State
Government issued another Circular dated 11.10.1999 for revision of the pay scale
which provides for the grant of benefit of senior grade pay scale after rendering
minimum 6 years of service period and further 5 years of service period in
senior grade as essential requirement for placement in selection grade pay
scale as per clause 8 (a) of the said Circular.
The respondent, being
aggrieved by not counting of his period of service rendered as an emergency
appointee on the post of Assistant Professor by the State Government for the purpose
of granting higher pay scale, had filed a Writ Petition before the High Court of
Madhya Pradesh, inter-alia seeking an appropriate Writ and other consequential reliefs.
The same came to be allowed
vide Judgment and Order dated 15.01.2009. Aggrieved by the same, the State
Government preferred a Writ Appeal before the High Court. The High Court, vide its
impugned common Order dated 11.02.2010, dismissed the Writ Appeal and directed the
State Government to count the period of service rendered by the respondent on emergency
appointment for granting the 9 benefit of the senior/selection grade pay scales.
Being aggrieved, the State Government is before us in this appeal.
5.
The
learned single Judge of the High Court, vide its Order dated 15.01.2009, observed
that in view of series of decisions of the High Court, the service rendered by the
Assistant Professor, appointed on the emergency basis, requires to be counted for
the purpose of granting benefit of higher pay scale.
The High Court has specifically
followed the Order dated 13.07.2007 of Single Judge in Smt. Sandhya Prasad v.
State of M.P. in W.P. No. 807/2007(S) which, in turn, has followed the Division
Bench decision in State of M.P. & another v. Dr.(Smt.) Seema Raizada & another
in W.A. No. 4863/2001 decided on 10.08.2005. The learned Single Judge also
clarified that the period of such service will only be counted for the purpose of
granting the benefit of senior pay scale and selection grade and not for seniority
in the cadre of Assistant Professor.
6.
The
Division Bench of the High Court in Writ Appeal No. 599/2008 and other connected
matters, vide its impugned common Order, has discussed its earlier decision in State
of M.P. & another v. Dr.(Smt.) Seema Raizada & another (Supra). That
was the Writ Petition, filed by the State Government against the Order of the State
Administrative Tribunal challenging the direction issued to take into
consideration the period of service of the emergency appointee for determining
the benefit of higher pay scale, which had been dismissed by the High Court.
The High Court further
observed that this decision was consistently followed by it in several other Division
Bench and Single Bench decisions. The State Government, being aggrieved by these
decisions in Dr. (Smt.)Seema Raizada (Supra) and other connected matters, preferred
a Special Leave Petition before this Court. This Court, vide its Order dated 03.12.2007,
dismissed Special Leave Petition on the ground of delay and hence, left the
question of law open. The State Government also preferred a Review Petition,
which was dismissed by this Court vide its Order dated 12.03.2008.
Thereafter, the State
Government, in identical matters, preferred a Writ Appeal before the Division Bench
of the High Court in view of the dismissal of the SLP on the ground of delay
but question of law was left open. The High Court, in its impugned judgment, has
also discussed the judgment and order dated 07.05.2009 in Writ Appeal No.
528/2008 in State of M.P. v. Dr. Brijesh Kumar. That Writ Appeal was filed by the
State Government against the Single Judge Order wherein the benefit of higher
pay scale was conferred on account of period of service rendered as emergency
appointee.
In that Writ Appeal, the
High Court, after placing reliance on various earlier decisions, observed that
there is a conceptual difference between the conferral of seniority and 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 by counting the service from the
date of initial appointment as the appointment was, as per the rules and has been,
later regularized.
The High Court, in the
impugned judgment, has also observed that the High Court has consistently taken
a view that emergency appointees, under Rule 13(5) of the Recruitment Rules, 1967,
are entitled for the benefit of higher pay scale by counting the services rendered
as emergency appointees. The High Court has also observed that the State Government
has failed to grant the benefit of higher pay scale to the emergency appointees
vide its Circular dated 11.12.1999. It further held that the emergency appointments
were made after following due process of advertisement and selection in the pay
scale and such appointees continued, till their regularization, without any break.
Hence, such
appointments were not on purely ad hoc basis. The High Court further observed
that the emergency appointees satisfy all the five essential conditions envisaged
in the Circular dated 12.02.1992 issued by the State Government in order to take
into account the period of prior service rendered for determining the grant of higher
pay scale and selection grade. The relevant portion of the impugned Order of the
High Court is extracted below:
"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 regularisation and they were holding
the similar pay scale in which they were regularised. 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 ad hoc 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 12.2.93 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 countered 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 then 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 ad hoc 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 the second condition as to the qualifications
prescribed for the post, the post held was the same post 1and 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)
(sic.) 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 ad
hoc basis, it was not against any leave vacancy. For the purpose of appointment,
prescribed procedure under Rule 12(5) (sic.) was followed, appointment was made
under the rule.
Rules provide for emergency
appointment and prescribed the procedure for that which was followed and
ultimately the services were regularised. 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 then 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 112.2.92, 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 declined to include service rendered in ad hoc
capacity for counting of past service for placement in senior scale/selection grade,
provided that the following three condition are fulfilled:-
"(a) The ad hoc service
was of more than one year durataion;
(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 ad hoc 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 ad hoc, but it was under the
rules as an emergency appointee, even ad hoc appointee in case ahs 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 ad hoc
service without any brake, his services has to be counted fro 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 1 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 rendred 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 Divison 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."
The High Court further
observed the respondents' stand on the better footing in terms of both the Circulars
dated 12.02.1992 as well as Order dated 25.12.1998 of the M.P. Public Service Commission
as their services are not purely ad hoc but, under the rules, as an emergency employee.
The High Court, while dismissing the Writ Appeals, concluded that the
respondents are bound to count the services rendered by the appellants as
emergency appointees for their placement in senior scale/selection grade.
7.
Shri.
B.S. Banthia, learned counsel for the appellant, submits that the Recruitment Rules,
1967 provides two modes of recruitment viz. by direct recruitment made by the PSC
under Rule 7(1), and emergency appointments under Rule 13(5), when the PSC list
is not available, on a temporary basis. The service of such emergency appointees,
the learned counsel would contend, could be terminated as soon as PSC list, in accordance
with Rule 7(1), was available.
He would then state
that only those appointees, who were appointed by the method of direct recruitment,
as provided under Rule 7(1), were eligible to get the senior and selection
grade pay scales and not those who were appointed in accordance with Rule 13(5).
Though, not backdoor appointments, the learned counsel would contend that these
were not conforming to the rigors of the selection procedure followed by the
PSC and hence, could not be equated to those appointments made by the PSC.
He would further submit
that his argument is strengthened by the fact that the respondents could be terminated
without notice in case of availability of the PSC list and that it was essential
for the respondents to clear the requirements of PSC to get their appointments regularized.
The learned counsel
also relies upon voluminous other documents such as various schemes issued by
UGC from time to time and adopted by the State of Madhya Pradesh either in toto
or partially, and also the Government Orders and Circulars issued from time to time
indicating the entitlement or otherwise of the emergency appointee for Senior Scale/Selection
Grade and submits that these voluminous documents could not be produced before the
High Court, since the appeals were disposed of at the stage of admission itself.
8.
Shri.
P.S. Patwalia, learned senior counsel, led the arguments for the respondents in
the batch of appeals. He submits that the respondents are entitled for higher pay
2scale by counting their service rendered as emergency appointees in view of
the Circular dated 11.10.1999 read with the Circular dated 12.02.1992 issued by
the State Government. He would contend that the appointment of the respondents were
made after following a due selection procedure and hence, such appointments are
not in the nature of temporary or ad hoc appointments but emergency appointments
in accordance with the Rules.
Therefore, the respondents
are entitled to receive higher pay scale from the date of their initial appointment
as emergency employees. He would then argue that not only the appointments were
made as per the mode prescribed under the Recruitment Rules of 1967, but also their
characteristics were not akin to those of ad hoc or fortuitous appointments as nation-wide
advertisements were published and selections were made on the basis of merit.
It is further submitted that the respondents were qualified for appointment to the
post and they are also getting annual increments for continuous service from the
date of initial appointment.
He would argue that
it was an admitted position that the appointments were not ad hoc appointments
in view of the affidavit filed by the appellants before this Court. He further
submits that the Govt. Order dated 25.08.1998, issued by Madhya Pradesh Public
Service Commission, which has also been relied upon by the High Court in its
impugned Judgment, contemplates the grant of higher pay scale on the basis of ad
hoc service rendered for more than one year.
He submits, by placing
reliance on the said Govt. Order that the case of respondents stands on the better
footing as their services are not purely ad hoc. Shri. Patwalia would defend the
reasoning of the High Court in the impugned judgment and submit that the respondents,
as emergency appointees, fulfill all the five conditions envisaged in the
Circular dated 12.02.1992. The learned senior counsel submits that the
respondents were regularly working without any artificial breaks and that they
are paid UGC pay scale with regular annual increments and are also eligible for
pensionary benefits.
He would contend that
there are three characteristics of an ad hoc appointment, viz., they are made
de hors the rules, they are employed for a specified duration and they are in a
fixed pay scale. He further submits that the grant of senior/selection grade
pay scale, by taking into account the past period of service rendered, is a `stagnation
removal device' and there is no reason for the denial of the same to the respondents
in the present cases.
He argues that though
the emergency appointments were made in view of non-availability of selected
panel candidates of Public Service Commission, but it is a matter of fact that the
respondents continued in the service till their regularization. He further submits
that Circular dated 11.10.1999, while conferring benefit of higher pay scale on
the Assistant Professors, uses the word "service" instead 2of
"regular service" for computing the past services rendered.
He contends that the
1999 Circular confers benefit to all kinds of services without any distinction whether
regular, ad hoc, temporary or emergency service. He submits that the respondents
have satisfied all the conditions referred to in Clause 8(a) of the 1999 Circular
to qualify for higher pay scale.
He argues that Rule
7(4) also contemplates a method of appointment other than through Public
Service Commission, which when read with Rule 13(5), would give the respondents
a status of being appointed to service under the Recruitment Rules, 1967. He would
then submit that emergency appointments are prescribed under the rules and cannot
be termed as ad hoc. He further argues that the ad hoc appointments are always de
hors the service rules and in some cases, rules provided for the temporary
appointment, for a limited period, cannot be considered as ad hoc.
He submits that the State
Government had granted the benefit of higher pay scale 2 under the said Circulars
only to the five emergency appointees but the same has been denied to those emergency
appointees, who were appointed and regularized between the years 1987 and 2003 and
thus, this amounts to discrimination and denial of equal treatment to similarly
placed emergency appointees.
In support of his submissions,
Shri. Patwalia has referred to several precedents of this Court in the case of Union
of India v. K.B. Rajoria, (2000) 3 SCC 562, Union of India v. Mathivanan,
(2006) 6 SCC 57, Dwijen Chandra Sarkar and Another v. Union of India, (1999) 2 SCC
119 and S. Sumnyan and Ors. v. Limi Niri and Ors., (2010) 6 SCC 791. The learned
senior counsel does not dispute the fact that the appeals were disposed of at the
stage of admission itself.
9.
Shri.
Romy Chacko, learned counsel appearing for some of the respondents, adopted the
submissions as made by Shri. Patwalia, and would state that there is a distinction
2 drawn between ad hoc appointees and emergency appointees by the State itself.
10.
All
other learned counsel, appearing for respondents in connected civil appeals, would
adopt the submissions as made by learned senior counsel Shri. Patwalia.
11.
We
tried to wade through voluminous materials in the form of schemes, Govt. orders
and circulars produced by both the learned counsel appearing for the parties. More
we tried to dwelve into the matter, more and murkier facts, which we call normally
`Pandoras Box', started emerging. Going through these documents could have been
done by us, but since those documents were not even produced by way of affidavit
and since the learned counsel on the opposite side had any knowledge of those documents,
we have thought it fit to remand these matters back to the High Court for fresh
disposal in accordance with law, by granting liberty to both the parties to produce
all thse documents which they tried to rely upon before us.
12.
We
are also informed by both the learned counsel that it would be in the interest
of all the parties that these petitions be heard before one Bench so that possibility
of divergent opinion/s from the High Court could be possibly avoided. The expression
of desire appears to be reasonable and, therefore, we accept the same.
13.
In
that view of the matter, we allow the appeals, set aside the orders passed by the
High Court in all these matters and remand the matter back to the High Court for
its fresh consideration in accordance with law. We also give liberty to both the
parties to place on record all the documents on which they intend to rely in support
of their case including the manner, mode and the source of appointment of each of
the Assistant Professors.
14.
We
also request the learned Chief Justice of the Madhya Pradesh High Court to assign
all these matters to the Principal Bench itself so that the matters could be finally
settled by one Bench, instead of two or three Benches taking different views on
the same set of facts and on the questions of law.
15.
Since
the matters were pending for some time, we request the learned Chief Justice to
either take up the matters by himself or assign it to an appropriate Bench and request
that Bench to dispose of the appeals at the earliest. We clarify that we have not
expressed any opinion on the merits of the case. Ordered accordingly
.......................J.
[ H. L. DATTU ]
.......................J.
[CHANDRAMAULI KR. PRASAD]
New
Delhi,
December
01, 2011.
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