STATE OF M.P. Vs SATYAVRATA TARAN
Bench: H.L. DATTU,CHANDRAMAULI KR. PRASAD
Case number: C.A. No.-010554-010554 / 2011
Diary number: 17928 / 2010
Advocates: B. S. BANTHIA Vs
ANUPAM LAL DAS
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10554 OF 2011 (Arising out of S.L.P. (C) No. 16906 of 2010)
State of Madhya Pradesh & Ors. ……… Appellants
versus
Satyavrata Taran …….Respondent
WITH
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)
1
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)
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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)
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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)
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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)
5
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.
6
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
7
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
8
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
1
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
1
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
1
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
1
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
1
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
1
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) (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
1
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 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.
1
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
1
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
2
scale 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
2
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
2
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
2
of “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
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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 more 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
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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.
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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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