SHYAM SUNDER LAL DIXIT Vs. MADHYA PRADESH THROUGH THE SECRETARY TO THE GOVT OF MADHYA PRADESH EDUCATION DEPARTMENT BHOPAL
LAWS(MPH)-1969-4-17
HIGH COURT OF MADHYA PRADESH
Decided on April 28,1969

SHYAM SUNDER LAL DIXIT Appellant
VERSUS
MADHYA PRADESH THROUGH THE SECRETARY TO THE GOVT. OF MADHYA PRADESH, EDUCATION DEPARTMENT, BHOPAL Respondents

JUDGEMENT

SINGH J - (1.) THE petitioner by this petition under Article 226 of the Constitution seeks a writ of mandamus commanding the State Government to fix the pay-scale of the petitioner as Senior Lecturer and Professor from 1st April, 1958 in the unified scale, and a writ in the nature of certiorari to quash the order relating to the absorption of the petitioner which is exhibited as Annexure A. 36 to the petition.
(2.) THE facta and circumstances leading up to this petition are these. THE petitioner was appointed as a Lecturer on 24th July, 1952 in the State of Bhopal and was confirmed on that post on 18th July, 1956. From 1st November, 1956, the new State of Madhya Pradesh came to be constituted under the States Re-organisation Act, 1956. By an order dated 22nd August, 1957 the petitioner was appointed "temporarily until further orders as officiating Senior Lecturer in Hindi" in the Maharaja College, Chhatarpur in the scale of 350-350- 25-500-500-EB-25-700-700-EB-30-850. It was also mentioned in the order that the scale of pay and the designation of post were subject to revision at any stage by the Government. THE petitioner joined the new post on 26th August, 1957. By an order dated 17th August, 1960 the petitioner was transferred in the same capacity, pay and pay-scale to T. R. S. College, Rewa. Subsequently, by an order dated 6th July, 1964 the petitioner was transferred to Government Science College, Raipur in the same capacity, pay and pay-scale. In this order the petitioner was described as Professor. THEreafter, on 28th July, 1966 the petitioner was transferred in the same capacity, pay and pay-scale to the Government Degree College, Shivpuri. Here also the petitioner was described as Professor. As a result of the formation of the new State, the State Government took up the work of integration and reorganisation of services. In the final gradation list, which was published by an order dated 24th July, 1981 and which had the effect as if in force on 1st November, 1956, the petitioner was shown in category V as a Lecturer. In 1959 the Governor of Madhya Pradesh In exercise of his powers under Article 309 of the Constitution made the Madhya Pradesh Unification of Pay Scale and Fixation of Pay on Absorption Rules, 1959. We shall revert to the provisions of these rules later On 18th May, 1960 the Government sanctioned unified scales of pay by Order No. 1765/3184/ I- Integ. which is as under: "THE State Government are pleased to sanction for the posts specified in column (1) of the schedule appended hereto, unified scales of pay specified in the corresponding entry in column (6) thereof." *** *** *** *** SCHEDULE Name of the Department..............Education Name of Establishment ............Collegiate Education Pay-scale on the 31st October, 1956 On 22nd August, 1962 the State Government issued an absorption order in respect of the petitioner which was as follows: "Shri Dr. S.S.L. Dixit, of the former State of Bhopal is deemed to have been absorbed Finally/Provisionally against the post of LECTURER with effect from 1-11-1956 included in the cadre of LECTURER in the new State of Madhya Pradesh and the said post shall, for the purpose of Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, be the "post of absorption" in respect of him within the meaning of clause (g) of rule 2 of the said Rules. 2. Shri Dr.S.S.L. Dixit who has been officiating in the post of JUNIOR PROFESSOR with effect from 28-7-1957 to..............shall be deemed to be holding purely in an officiating capacity the post of ASSISTANT PROFESSOR in the unified scale until further orders." It will be seen that although the petitioner was throughout working as Senior Lecturer or Professor with effect from 26th August, 1957, paragraph 2 of the aforesaid order recited wrongly that the petitioner has been officiating on the post of Junior Professor which was a post lower in rank to the post of Senior Lecturer or Professor. It seems that representations were made by the petitioner objecting to paragraph 2 of the aforesaid order. As a result, the Government by order dated 2nd January, 1963 cancelled the absorption order as a whole. Another absorption order in relation to the petitioner was then passed after nearly four years on 5th January, 1967 which is as under: "Shri Dr. S. S. L. Dixit of the former State of Bhopal deemed to have been absorbed provisionally against the post of Lecturer Degree College with effect from 1-11-1956 included in the cadre of Lecturer Degree College in the new State of Madhya Pradesh and the said post shall, for the purpose of Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959, be the post of absorption in respect of him within the meaning of clause (g) of rule 2 of the said rules. 2 Shri Dr. S. S. L. Dixit who has been officiating / had officiated in the post of SENIOR LECTURER AND PROFESSOR with effect from 26-8-1957 to............shall be deemed to be holding purely in an officiating capacity the post of an Assistant Professor in the unified scale until further orders " It will be noticed that paragraph 1 of this order is identically worded as the previous order which was cancelled. THE change made in paragraph 2 is that in the previous order the petitioner was wrongly shown as officiating in the post of Junior Professor and this mistake was corrected in the new order, which recites that the petitioner has been officiating in the post of Senior Leoturer and Professor with effect from 26th August, 1957. However, the later part of paragraph 2 remained the same and in terms of that order, the petitioner was deemed to be holding in an officiating capacity the post of an Assistant Professor in the unified scale until further orders. From the petition and return it appears that although the petitioner was deemed to have been holding the post of Assistant Professor, he was actually working on the date of that order as a Professor in Government College Shivpuri and he continued to work on that post. Subsequently, an order was made on 16th November, 1967 by which the petitioner was promoted from the post of Assistant Professor to the post of Professor in temporary and officiating capacity and posted as such in Government College Shivpuri. It is remarkable that even in between January, 1967 and November, 1967 the petitioner was throughout working against the post of Professor and he actually never worked as an Assistant Professor anywhere. The grievance of the petitioner is that he having been promoted or appointed to the post of Senior Lecturer or Professor which has been designated as Professor in the unified scale, the petitioner according to the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959 is entitled to the unified scale of the post of Professor after 1st April, 1958 and paragraph 2 of the absorption order dated 5th January, 1967 being contrary to law and facts, should be quashed. According to the order sanctioning unified scale of pay, the posts of Readers in Mahakoshal, the posts of Professors in Mahakoshal, Madhya Bharat and Bhopal, and the posts of Senior Lecturers in Vindhya Pradesh were designated as Professors and unified scale of pay of Rs. 475-500-500-25-600-Bar-30-750-25-850 was sanctioned for them. The petitioner from 26th August, 1957 officiated as Senior Lecturer in Vindhya Pradesh and thereafter as Prafessor in Mahakoshal and Madhya Bharat regions. Thus, from 26th August, 1957 he always worked on the posts for which the unified scale of pay of Professor was sanctioned. Below Professors in the unified scale rank Assistant Professors which comprise of Assistant Professors in Mahakoshal, Junior Professors in Madhya Bharat and Senior Lecturers in Bhopal. The petitioner never worked on any of the posts which fall under the new designation of Assistant Professors. But strangly enough by paragraph 2 of the absorption order he is deemed to be holding in an officiating capacity the post of Assistant Professor right from 26th August, 1957 although he all along from that date officiated as Senior Lecturer and Professor, posts which were unified and designated as Professor. The question before us is whether having worked all along on the posts for which unified scale of Professor is sanctioned, the petitioner is entitled to the benefit of that unified scale of pay. The answer to this question depends upon the provisions of the Madhya Pradesh Unification of Pay Scales and Fixation of Pay on Absorption Rules, 1959. These rules were framed urjder Article 309 of the Constitution and have the force of law. Rule 2 of these rules contains the definitions. "Allocated Government servant" is defined in rule 2 (a) to mean "a person in the service of a former State allotted or deemed to have been allotted to serve the State of Madhya Pradesh under the provisions of section 115 of the States Reorganisation Act, 1956 and continued in the service of the new State." Rule 2 (e) contains the definition of "New entrant" which means "a Government servant appointed or deemed to have been appointed on or after the 1st November, 1956. "Post of absorption is defined in Rule 2 (g) to mean "the post included in a cadre or otherwise in a cadre in the new State of Madhya Pradesh in which an allocated Government servant is absorbed or is deemed to have been absorbed irrespective of whether the post is permanent or temporary." By rule 2 (k) unified scale is defined to mean "a scale of pay fixed by Government, and so described, by a general or special order in this behalf whether passed before or after the coming into force of these rules." Rules 4, 6 and 11 which are relevant for our discussion are as follows: "4. Subject to the provisions contained in Rule 7, the pay scale applicable to an allocated Government servant on 1st April, 1958 or on such earlier date as may have been fixed in this behalf by a general or special order, shall be unified scale applicable to his post of absorption: Provided that such allocated Government servant may elect to retain the existing scale applicable to the post held by him in a substantive, officiating or temporary capaeity on the 31st October, 1956, so long as he holds the post or a post corresponding to the one which he was holding." "6. Subject to the provisions contained in rule 7 the pay scale applicable to a new entrant shall be the unified scale: Provided that, if the terms of appointment of a new entrant entitle him to retain the scale of pay on which he was recruited, he may elect to retain that scale only so long as he holds that post to which he was recruited." "11. A Government servant promoted from a lower to a higher post after the 1st November, !956 shall, subject to the provisions of rule 5, be entitled to draw pay in the unified scale applicable to that higher post with effect from the 1st April, 1958 or from the date of actual promotion whichever is later." We are not concerned with rules 5 and 7 which are referred to in the aforesaid Rules and they need not be considered. An allocated Government servant under rule 4 is entitled to the unified scale of pay applicable to his post of absorption. Under this rule the Government servant does not become entitled to the benefit of unified scale of pay applicable to a particular post until he is able to show that he has been absorbed to that post. In case of a new entrant i.e. a person appointed to a post on or after the 1st November, 1956, unified scale is available under rule 6. Rule 11 deals with promotees. If a person is promoted to a higher post from a lower post after 1st November, 1956, he becomes entitled to the unified scale of the higher post from 1st April, 1958 or from the date of actual promotion whichever is later. It would be seen that rules 6 and 11 do not make it a condition of their applicability that the appointment or the promotion, as the case may be, should be permanent and not officiating. In the absence of words limiting its applicability to permanent employees, the benefit of rule 6 is available to a new entrant who holds the post only in an officiating capacity. For the same reason, a person promoted to a higher post in an officiating capacity can claim the benefit of rule 11. Further, none of these provisions make it a condition that there should be a subsequent absorption order after the order of appoinment or promotion. The order of absorption is only necessary to get the benefit of rule 4 but such an order is not a condition precedent for applica bility of rules 6 and 11. Now, the petitioner, as we have already seen, was appointed by an order of 22nd August, 1957 "temporarily until further orders an officiating Senior Lecturer in Hindi," in the Maharaja College, Chhatarpur in Vindya Pradesh region. He was then transferred in the same region to T R. S. College, Reva. Later on he was transferred in the same capacity as Professor in the Mahakoshal and Madhya Bharat regions The appointment order does not use the word "promotion", but as before this order the petitioner was working on a lower post of Lecturer in Bhopal, the order of appointment as officiating Senior Lecturer must be construed as promotion. After all promotion means appointment of a civil servant from a lower to a higher post. In our opinion, therefore, the petitioner was a Government servant promoted from a lower post of Lecturer to the higher post of Senior Lecturer after 1st November, 1956. His transfers thereafter were in the same capacity on equivalent post of Professors. His case squarely falls within the ambit of rule 11 and he is entitled to the benefit of the unified scale applicable to the higher posts of Senior Lecturer and Professor which have been redesignated as Professor. Even assuming that this was not a case of promotion, the petitioner's case will then fall under rule 6. He will then have to be treated as a new entrant as he was appointed Senior Lecturer or Professor after 1st November, 1956, and he would be entitled to the same benefit of the unified scale of pay under rule 6. It has been argued on behalf of the State Government that petitioner's promotion from the post of Lecturer in Bhopal to that of Senior Lecturer and Professor in Vindhya Pradesh, Mahakoshal and Madhya Bharat regions was only temporary until further ordors in an officiating capacity, and therefore, the petitioner was not entitled to the benefit of unified scale of pay. This contention is not correct. We have already said that rules 6 and 11 do not make it a condition for their applicability that the appointment or promotion should be permanent and not temporary or officiating. The only thing that the Government could have done was to revert the petitioner to a lower post, as his promotion to the post of Senior Lecturer or Professor was temporary until further orders in an officiating capacity, but this was never done. We find that when the second absorption order was passed on 5th January, 1967 it was stated in paragraph 2 of that order that the petitioner, who has been officiating as Senior Lecturer and Professor from 26th August, 1957, shall be deemed to be holding purely in an officiating capacity the post of Assistant Professor in the unified scale. It is difficult to understand what thi=s order means. The petitioner having all along worked from 26th August, 1957 as Senior Lecturer or Professor, posts which have been unified as Professor, could not be deemed to have worked as an Assistant Professor, which is a post of a lower rank. As already said, if the petitioner's promotion was later on not considered to be proper according to seniority as determined by the final gradation list or for any other reason, he could have been reverted as an Assistant Professor from the date of the order of reversion; but it was impossible to say that he should bo deemed to have worked from 26th August, 1957, as an Assistant Professor. Even after the said order of absorption passed on 5th January, 1967 the petitioner did not cease to hold the post of Professor which is clear from a communication addressed by the Government to the Accountant- General (Annexure 4 to the return) bearing the same date. In this memo, the Government informed the Accountant-General that the petitioner was an Assistant Professor but was working against the post of Professor of Hindi. Thus, the petitioner was not reverted from the post of Professor to the post of Assistant Professor even for a single day and he all along continued to officiate on the posts of Senior Lecturer and professor weich were unified as Professor. Simply because his appointment was temporary or officiating, he cannot be deemed to hold the post of a lower status. Had there been a proper reversion order, he would have ceased to be Professor from the date of reversion. But as already stated, this was never done. We find that on 16th November, 1967 another order was passed promoting him to officiate temporarily until further orders as Professor. Thp absorption order passed on 5th January, 1967, the communication to the Accountant-General of the same date and the order of promotion passed on 16th November, 1967 all proceed on a confusion and it seems that the authorities somehow wanted to avoid payment of unified scale of pay from 1st April, 1958 of the post of Professor to the petitioner. We, however, fail to see how these orders in face of clear language contained in rules 6 and 11 can deprive the petitioner of his legitimate right to get the unified scale of pay of the post of Professor on which he has been throughout working. In our opinion, it was the duty of the Government, having regard to rules 6 and 11, to have fixed the petitioner's pay in the unified scale applicable for the post of Professor and there was no authority in the Government to have passed an order declaring that the petitioner shall be deemed to have been working as an Assistant Professor during all this period.
(3.) IN the result the petition succeeds and is allowed. We quash paragraph 2 of the absorption order dated 5th Jauuary, 1967 and issue a writ in the nature of mandamus directing the Government to fix the petitioner's pay in the unified scale of Professor and to give him the benefit of that scale from 1st April, 1958. The petitioner will have his costs of this petition from the respondent State. Counsel's fee Rs. 100, if certified. The amount of security deposit shall be refunded to the petitioner.;


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