A lab technician appointed ad hoc in 1991 and regularised in 2008 sought annual increments for her ad hoc service based on State circulars and parity with a similarly situated employee. The Court held ad hoc appointees are entitled only to minimum pay without increments, the supporting precedent stood overruled, and dismissed the petition.
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No.2709 of 2018
Smt. Lata Shukla W/o Shri Atul Kumar Shukla Aged About 58 Years Presently Posted As Lab Technician, Government D B Girls Postgraduate College Raipur District Raipur Chhattisgarh.
---- Petitioner
Versus
For Petitioner: Shri Amrito Das along with Shri Shreyansh Mehta, Advocates. For Respondents/State: Shri Atanu Ghosh, Dy. G.A.
Single Bench: Hon'ble Shri Deepak Kumar Tiwari, J Order On Board
05.02.2024
matter is being heard finally.
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(Annexure P-1) seeking grant of annual increment for a period commencing from 23.08.1991 to 15.12.2008 to the Petitioner, who was working on the post of Lab Technician on ad hoc basis as also for fixation of proper salary after grant of annual increment with all consequential benefits including arrears of pay.
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the circulars dated 08.01.1993, 18.08.1993 or 25.10.1993, therefore, the right of the Petitioner to get annual increment on the basis of the said circulars is still alive, but she was deprived of the same for the said period. A similarly situated Lab Technician namely Ku. Ragini Verma had filed a Petition before the Madhya Pradesh State Administrative Tribunal, Bench at Raipur (for short ‘the Tribunal’) on 04.07.2001 in O.A No.384/2001 in whose favour, the Tribunal has passed an award granting increment, however, the said order was not challenged and the same has attained finality. On a similar footing, other Petitioners namely Alok Kumar Rai and Premlal Patel have preferred W.P(S) Nos.3699/17 and 3712/2017 respectively wherein, the Respondent/authority has been directed to examine the issue in parity of the case of Ku. Ragini Verma and it was also directed that in case the benefit has been extended to Ku. Ragini Verma, then a suitable order has to be passed in respect of the Petitioners therein. Similarly, Satyanarayan Singh, Lab Technician had also preferred W.P(S) No.5958/2011 and this Court has passed order dated 18.12.2013 considering the fact that the State has not challenged the order passed in favour of Ku. Ragini Verma. On the contrary, the order passed by the Tribunal on 04.07.2001 was complied with and regular increment has been granted to Ku. Ragini Verma from the date of her initial appointment and further, a direction has been issued and similar
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treatment has been extended in favour of Satyanarayan Singh also. Thereafter, the State, considering the said case, vide order dated 19.01.2016 (Annexure P-24), granted annual increment to Satyanarayan Singh for his service rendered during ad hoc period in the light of the decision rendered in the case of Ku. Ragini Verma. The Petitioner herein had earlier filed a Petition before this Court by way of W.P(S) No.5031/2016 and this Court, vide order dated 17.02.2017, has issued a direction to decide her representation and the said representation has been dismissed vide order dated 24.06.2017 by mentioning that the case of the Petitioner was different as there were service breaks.
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Administration Department dated 11.09.1995, whereby the increment granted to the ad hoc employees was stopped.
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by Ku. Ragini Verma in W.P(S) No.3812/2012, therefore, this Court had observed that for an excess payment made for a period of 5 years or more, recovery would not be permissible. He further submits that Writ Appeal preferred by the State i.e. No.316/2016 on 04.07.2016 was dismissed as the Petitioner therein i.e. Ku. Ragini Verma had not stated any false facts or misrepresented any facts and her claim was accepted by the State in the year 2001. He further submits that the view taken by the Tribunal has been squarely reversed in a catena of judgments and it has been held that ad hoc appointees are not entitled for annual increments and a similar view has been taken by the High Court of Madhya Pradesh in the order passed in W.P. No.13207/2003 (Smt Kiran Shukla) that an ad hoc employee gets the flat rate of scale and he cannot claim as a matter of right that increment should be granted to him for the said period. He lastly submits that in a similarly placed matter i.e. W.P No.25463/2003 (Mahesh Pd. Gupta vs. The State of M.P.) dated 07.09.2010, the following was observed:-
9(31)(a) "Time-scale of pay" means pay which, subject to any condition prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressive.
(b) Time scales are said to be identical if the minimum, the maximum the period of increment and the rate of increment of the time scale are identical. A conjoint reading of the aforesaid provision would thus make it clear that unless a person is appointed substantively in a time scale on permanent post is not entitled to count the services
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rendered by him for the purpose of increment. Conversely, since the ad hoc appointment is not an appointment to a permanent post and an ad hoc appointee cannot have a lien on a post is not entitled for the increment for the said period. In this context regard can be had of the judgment rendered by the Apex Court in the case of Haribans Mishra and other Vs. Railway Board and Others (AIR 1989 SC 696); wherein, their Lordships were pleased to observe as under:-
15…..There can be no doubt that a person appointed to a post on an ad hoc basis cannot have any lien on the post. It is only when a person is appointed on a permanent basis, he can claim lien on the post to which he is so appointed ..…
In view of the above since the petitioner was discharging the duties as ad hoc librarian between period from 23/02/1998 to 23/02/1990 he is not entitled for increment for the said period. In the result this petition fails and is hereby dismissed.”
He further submits that in the matter of Sadhan Chandra Dev
vs. Union of India reported in (1998) 8 SCC 127, it has been categorically held that it would not be proper to extend wrong benefits, therefore, the Petition being devoid of any merit is liable to be dismissed.
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pursuance of Dr. PL Malik vs. State of Madhya Pradesh and others (supra). The High Court of Madhya Pradesh, in the matter of Saroj Goswami vs. State of M.P and others reported in 2006(1) M.P.L.J 217, has categorically observed at para-9 that the decision rendered in Dr. PL Malik vs. State of MP, T.A No.1547/88 and connected cases decided on 30.07.1990 holding that ad hoc employees are entitled to increments is therefore wrongly decided and reliance was placed on the matter of Dhyan Singh vs. State of Haryana, JT 2000(10) SC 436, wherein, considering whether temporary service or ad hoc service rendered in specific schemes could be counted as employment under the State, the Supreme Court has observed the following:-
“The continuance/engagement of the appellants under the specific scheme cannot be held to be an employment under any establishment of the Government. Such schemes are taken up for certain contingencies when money for the same is provided either by the Central Government or at times by some foreign countries. But the employment under such scheme not being a part of the formal cadre of the State Government, it is difficult to hold that the period for which an employee rendered service under such scheme, can be counted either for the purposes of deciding their pensionary benefits or even for fixing of their salary in the scale of pay once they are regularly absorbed.”
8. Dealing with the principle of delay and laches, the following
was materially observed in S aroj Goswami vs. State of M.P and others (supra) at para-6, which is as under:-
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"The Principle in M. R. Gupta will apply where the re-fixation is sought on the ground of an error in calculation (incorrect computation), or where the entitlement for refixation is not disputed. It will also apply to a case where there is no dispute about the applicability of a particular pay scale, but the pay had been wrongly fixed in a different pay scale; or to a case where there was a wrong fixation in the same pay scale contrary to the Rules; or to a case where the fixation of pay was erroneously done by not calculating the initial pay in the pay scale as contemplated under Fundamental Rule 22 (I)(a)(i) corresponding to old F.R. 22 (c).
.......Where the real issue is adjudication of a right claimed for the first time and which is not admitted, the principle in M. R. Gupta will not apply. Similarly, where a person is regularised or absorbed on a particular post and the pay is fixed in the applicable pay scale but the employee wants pay should be fixed at a higher level by taking note of previous service rendered on stopgap/ ad-hoc/contract basis, then the question involves adjudication of an issue as to whether such service was rendered and whether it should be counted. Though the ultimate consequence of grant of such relief may be re-fixation of pay, the real issue to be adjudicated is not refixation but an independent right, which was not claimed or asserted in time. In those cases, if there is delay, the Court or Tribunal will be justified in refusing to adjudicate upon the right belatedly claimed and consequently there can be no re-fixation of pay."
in (2017) 3 SCC 436, it has been observed that even if principle of
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“equal pay for equal work” is applicable, temporary employee shall be entitled to minimum of the pay scale which is attached to the post, but without any increments, the right of equality under Article 14 is not in negative terms and relevant paras i.e. paras-26 & 27 are as under:-
“26. From the aforesaid, it follows that though a “permanent employee” has right to receive pay in the graded pay scale, at the same time, he would be getting only minimum of the said pay scale with no increments. It is only the regularisation in service which would entail grant of increments, etc. in the pay scale.
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call for any interference invoking writ jurisdiction.
dismissed.
Sd/-
Priya
(Deepak Kumar Tiwari) JUDGE
3 issues framed by the court
Whether an ad hoc Lab Technician is entitled to annual increments for the period of ad hoc service prior to regularisation.
Whether the petitioner's claim is barred by delay and laches.
Whether the benefit granted to a similarly situated employee can be extended to the petitioner.
Colour shows how this judgement treated each authority
Dr. P.L. Malik vs. State of Madhya Pradesh and othersOverruled
(1991) MPLSR 475)
Dhyan Singh vs. State of HaryanaRelied on¶7
JT 2000(10) SC 436 · Who else cites this
Saroj Goswami vs. State of M.P. and othersRelied on¶7
2006(1) M.P.L.J 217
Ram Naresh Rawat vs. Ashwini Ray and OthersApplied¶9
(2017) 3 SCC 436 · Who else cites this
1 provisions across 1 enactments
Smt. Lata Shukla
State of Chhattisgarh through the Secretary, Department of Higher Education
Commissioner Cum Director, Directorate of Higher Education
Principal, Government D B Girls Postgraduate College, Raipur
Secretary, Department of Finance
Joint Director, Treasury and Accounts, Raipur
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
