3 No.^.S.£>.-§^ l:!^i'oolay...^^.^^'^_ "'"" .ffx^'i^rr^J ^.-^I.^.K.^fls;. /£;< m^ ?rT?r;fnT rn?zr ^TT?T^ 3ff%?^r ^^ sr^r, TT^T' 3Tr^[^ ^ 4* 3HT"^FT°r ^ ^ <<^%^ t^p<S^ 34J^/^"' 3lt.^. ^if^ /2000 g^tq- ^iTT ^P^TgiT, 3TTi 38 3mqur ^t- ^T f^i ^T^^, sn-^ W^=?rr STI^T^T, 9TT?T. ST^ 3ftETqT(?Pr, ^^t 'fWlT - <1^< IB'-7!* Sj£-S 01. ^^ ^T^f, ^TTT - ?rte, pft^ ^ry^r y4 TfT^TT ^"F^rrar 'f^n'T/q^Tppr SltqTn S^-y.J 02. B^cfl'W?- 5TT?Fr ^rrr - ^rte, c-I^ ^T-^^ ^ ETftqTTT ^C^OT f^Tn/if^TpPT TTZ?ST JE.3T* 05* ^iaqi, STT^fr^r f^1^F?TT T§1^^ sl-KTt-Wi^, if^TtW ^ eft% I^RT sT.t.JWcn-E-i ^ ift^j 'H"z^<r JB'*3T« j 04. srtft^ ^ 1^T sn-i^ sffsyn-fr 'fu^T - <T^^< JB'*3T« c-...' J/^^ ^^ 3TT^T ^ 3???fH ErTTT 19 ^"T g^3T rHHT 11^1 ^T^ TW^'W' x~ •^r^^^:B^^M^Mi^ ::^'1^^;": HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. PETITIONER RESPONDENTS Writ Petition (Sl No.3450/2005 Praveen Kumar Chandrakar Versus The S^ate of M.P. (now C.G.) and others II ORDER POST ON r MAY, 2010 Sd/- Manindra Mohan Shrivastava Jude J'' ^^ J ! HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHANSHRIVASTAVA,J. PETITIONER RESPONDENTS Writ Petition (Sl No.3450/2005 Praveen Kumar Chandrakar Versus The State of M.P. (now C.G.) and others Appearance: Shri Rakesh Anthony, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State. ORDER (Passed on 7 .05.2010) 1. This petition has been filed by the petitioner, aggrieved on account of withholding increments for a period of 2 years, on the ground that as the petitioner was not declared successful upon completion of 2 years probation period, increment could be granted only upon completion of one year of temporary ser^ice after expiry of 2 years of probation. 2. Facts of this case are in narrow encompass - upon selection through the Public Service Commission, petitioner was appointed on the post of Ayurveda Chikitsa Adhikari in the pay-scale of Rs.2200-75-2800-100- 4000/- per month vide order dated 28th January, 1991 (Annexure A-l). Petitioner's appointment was on probation for a period of 2 years. Even after expiiy of period of 2 years, no orders were passed with regard to successful completion of the period of probation. Petitioner submitted a representation on 24.12.1999 (Annexure A-2). An order was thereafter -2- passed on 24.1.2000 (Annexure A-3) by which, it was stated that as the petitioner neither successfully completed the period of probation nor was terminated, therefore, he is declared temporary under the provisions of Rule 8(7) of the M.P./C.G Civil Services (General Condition of Seryices) Rules, 1961 (henceforth "the Rules of 1961") from the date of completion of period of probation and his services would be governed by Madhya Pradesh Government Servants (Temporary & Quasi-Permanent Service) Rules, 1960 (henceforth "the Rules of 196CT}. Thereafter, petitioner was granted his increment upon completion of one year temporaiy service, w.e.f. 31.1.1994. Petitioner submitted representation on 5.5.2000 (Annexure A-5), but the same failed to evoke any response. 3. Submission of learned counsel for the petitioner is that petitioner was entitled to grant of increment from January, 1992 as he was appointed after regular selection on a time scale of pay of Rs.2200-75-2800-100- 4000/- per month and the order of appointment did not contain any condition of withholding increment in the eventuality of he being declared temporary servant on account of unsuccessful completion of period of probation. Further submission is that the Government vide its order dated 18.8.1993 (Annexure A-6) in compliance of the order of Tribunal, declared that even ad-hoc employees appointed in a time scale of pay would be entitled to increment. It was further submitted that the State Administrative Tribunal in the case of Dr. P.L Malik Vs. State of M.P. and others (1991 M.P.L.S.R. 4751 and number of cases, relying upon judgment of High Court of Madhya Pradesh in the case of Dr. (Smt.) Sushila Kripalani Vs. State of M.P. & another (M.P. No.3428 of 1983 decided on 13th October, 1997) 8s Dr. Pramod "^ -3- Kumar Khare Vs. State of M.P. (M.P. No.1866/85 decided on 12.12.1985), held that once an appointment has been made in a time scale of pay, irrespective of the nature of appointment, increments could not be withheld unless withheld by way of penalty. Petitioner was also entitled to grant of increment even if he was declared temporary servant. In view of the aforesaid judgments, earlier Circulars of the Government denying increment to ad-hoc employees was withdrawn vide Circular dated 18th August, 1993 (Annexure A-6). Therefore applying the aforesaid principles, petitioner was also entifled to grant of increment and the same could not be withheld by way of penalty on the ground that the petitioner did not complete his period of probation successfully. 4. Per contra, submission of learned counsel for the respondents is that though the petitioner was selected through P.S.C. and appointed in a time scale of pay vide order dated 28.1.1991 (Annexure A-l) on probation for a period of 2 years, as he could not successfully complete period of probation nor he was terminated, another order came to be passed on 24.1.2000 declaring him temporary in view of the provisions contained in Rule 8 (7) of the Rules of 1961 and thereafter governed by the provision contained in the Madhya Pradesh Government Servants (Temporary 8& Quasi-Permanent Service) Rules, 1960. Though respondents in their return have not referred to any executive instructions of the Government nor placed any of them on record, during the course of arguments, learned counsel for the State referred to two Circulars of the Government No. GAD/F/3-6/77/3/1 dated 30th May, 1977 SB GAD/No. 288/636/1 (3)/79 dated 6.6.1979. Learned State counsel placed for perusal of the Court compilation of -4- Government's instructions which contained those two Circulars. On the strength of these two Circulars, it is submitted thaf in such an eventuality, where a person has not been declared as having successfully completed the period of probation nor terminated, he will be deemed a temporary employee and not entitled for any increment for the services rendered during the period of probation. Such benefit of increment will be given only after completion of one year of temporary service. It is therefore submitted that the petitioner was granted first annual increment on 31.1.1994 i.e. upon completion of one year of temporary servrice. Submission of learned counsel for the respondents is that it was open for the Government to issue instructions to cover the gap where there was vacuum and the rules were silent with regard to entitleinent of increment and such stipulation in the aforesaid Government Circulars does not run counter to the rules in existence. Reliance has been placed upon the ratio of the judgment in the case of Sant Ram Sharma Vs. State ofRaiasthan & Ors.1 & State ofGuiarat Vs. Akhilesh C. Bhareav & Ors.2. 5. I have considered rival submissions made by leaned counsel for the respective parties and perused the records. 6. It is not in dispute that the petitioner was appointed in time-scale of pay vide order dated 28th January, 1991 (Annexure A-l) after his selection though the Public Service Commission, though on probation for a period of 2 years. However, the order of appointment did not stipulate any condition to the effect that in the eventuality of unsuccessful completion of period of probation, increments will not be 'AIR 1967 SC 1910 2AIR 1987 SC 2135 -5- granted and the petitioner would continue in service without increment. Even in the order dated 24.1.2000, though the petitioner was declared temporary and his services henceforth governed by the Rules of 1960, it was nowhere stated that the petitioner would earn increment only upon completion of one year of service. 7. Appointment on a time scale of pay is clearly indicative of rise by periodical increments from a minimum to a maximum of pay. Once a government servrant is appointed to a time scale of pay, addition of increments is automatic with the passage of time and is periodic in nature unless the terms of the appointment or the statutory rules governing the same provided otherwise. Time scale has been defined in F.R. 9 (31) which is as follows : "9 (31) (a) aTime -scale pay?? means pay which, subject to any condition prescribed in these rules, rises by periodical increments from a niinimum 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-scales are identicaF' 8. There is no stipulation either in express words nor would imply from any of the provisions contained in the Rules of 1961 that in the eventuality where a person appointed on probation is unsuccessful during his period of probation and yet not terminated from service, he would not be entitled to grant of increments during period of probation, notwithstanding his appointment in a time scale of pay. .^^•^ ^^ '^ %] -6- 9. Terms and conditions of a civil servrice or post are governed by various statutory recruitment rules framed by the Governor in exercise of constitutional authority conferred under Article 309 of the Constitution of India. Consequences in the matter of a person appointed on probation who has not been declared successful upon completion of period of probation nor terminated from service have been prescribed in Rule 8 (7) of the Rules of 1961 which is reproduce as under: "8. Probation - (7) A probationer, who has neither been confirmed, nor a certificate issued in his favour under sub-rule (6), nor discharged from ser^ice under sub-rule (4), shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Ser^ants (Temporary and Quasi-Permanent Service) Rules, 1960.w 10. A perusal of the aforesaid provision shows that the consequence in such a situation would be that the person would be deemed to have been appointed as a temporary servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Rules of 1960. Even in the rules of 1960, there is no stipulation that such a temporary serva.nt would not be entitled to earn increments even if he has been appointed in a time scale of pay. 11. Present is not a case where the petitioner could not cross efficiency bar, resulting in non-addition of further increments. Thus the only contingency under which the increments of a government serva.nt, may be a temporary servant, could be withheld, has been exhaustively provided in Rule 10 of the M.P./C.G. Civil Services (Classification, :^?^i&^fcs %%r^. ^iill^', -^ ^ -7- -^^ ^,:.— _ Control 8s Appeal) Rules, 1966 (henceforth athe Rules of 1966'}. A close examination of Rules 10 of the Rules of 1966 reveals that withholding of increment of pay constitutes a minor penalty. By way of explanation appended to the aforesaid rule, it has been exhaustively provided under Clause (i) (ii) as under: "(i) withholding of increments of pay of a Government ser^ant for his failure to pass any departmental examination in accordance with the rules or orders governing the ser^ice to which he belongs or post which he holds or the terms of his appointment; (ii) stoppage of a Government servant at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar;" 12. Thus, statutory rules clearly provided that withholding ofincrements of pay is a penalty except under two circumstances as enumerated in clause (i) 85 (ii) as above. The Rule Making Authority therefore clearly provided under the rules framed under Article 309 of the Constitution of India as to in what manner increments could be withheld. Present is not a case where the increments have been withheld on account of petitioner's failure to pass any departmental examination in accordance with the rules or orders governing the service to which he belongs or post he holds or the terms of his appointment. Present is also not a case where there is stoppage at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar. Therefore, the terms and conditions of the ser^ice as regulated by the appointment order and the rules referred to above, clearly entitled the petitioner to earn increments once he was appointed to a time scale of tfe ('. -8- <^'^>-5C pay. It is relevant to notice that the Rule Making Authority while providing explanation under Rule 10 of the Rules of 1966, consciously did not allow withholding of increments in the eventuality as prescribed in Rule 8 (7) ofthe Rules of 1961. 13. The legal position therefore, which emerges from examination of the provision contained in Rule 8 (7) of the Rules of 1961, Rules of 1960, Rule 10 (iv) as also explanations (i) 85 (ii) thereofofthe Rules of 1966 & F.R. 9 (31) of the Fundamental Rules, leads to the conclusion that in a case where a person appointed on probation has not been confirmed nor a certificate has been issued in his favour under sub-rule (6) of Rule 8 of the Rules of 1961 nor discharged from ser^ice under sub-rule (4) of Rule 8 of the Rules 1961, he shall be deemed to have been appointed a temporary Government servant with effect from the date of expiry of probation and his conditions of ser^ice shall be governed by the M.P. Government Servants (Temporary 85 Quasi-Permanent Service) Rules, 1960. Further, withholding of increments could take place only by way of penalty as prescribed under Rule 10 of the Rules of 1966 following the procedure prescribed under Rule 14 & 16 of the Rules of 1966, except in circumstances enumerated in (i) (ii) of the explanation appended to Rule 10 ofthe Rules of 1966. 14. Submission of learned counsel for the respondents that in view of the Government Circulars dated 30th May, 1977 85 6th June 1979, petitioner was not entitled to increments, clearly runs counter to the statutory scheme, to express it in other words, inconsistent with and in direct conflict with the terms of the appointment order and the statutory rules governing the field. There can be no quarrel with the proposition that it is peon for the Government to issue executive 6 (J^ 6. —.rf::':^ -9- instructions to flll in the gap where the rules are silent or where no provision has been made governing particular terms and conditions. However, it has been well settled in catena of decisions that in case of any conHict between the executive instructions and the rule made under Article 309 of the Constitution of India, the later shall prevail. The Government can issue executive instructions which are not contrary to the rules. Further, a rule made under Article 309 of the Constitution of India can be amended only by a rule or notiflcation duly made under Article 309 of the Constitution of India. (Please see Union of India and Ors, Vs. Soinasundarain Viswanath & Ors., (1989) 1 SCC 175, Dr. Sandhva Jain (Mrs.l Vs. Dr. Subhash Gare and another, (19991 8 SCC 449. B.N. Naearaian 8& Ors. Vs. State of Mysore & Ors., AIR 1966 SC 1942, Sr. Superintendent of Post Offices, Allahabad 8& Ors. Vs. Izhar Hussain, (19891 4 SCC 318 , Paluru Ramkrishnaiah Vs. Union of India and another, (19891 2 SCC 541 & Punjab Water Supply and Sewerage Board Vs. Ranjodh Sineh & Ors., (20071 2 SCC 491. 15. The stipulation that where a probationer is not declared confirmed nor certiflcate issued in his favour nor terminated and therefore a temporaiy servant governed by the M.P. Government Servants (Temporary & Quasi-Permanent Servrice) Rules, 1960 will'not be entitled to increments for the period of probation and will earn increment only after completion of one year of temporary service, has the effect and virtually amounts to introducing a new clause under the explanation appended to Rule 10 of the Rules of 1966 by adding one more contingency of withholding of increment which would not amount to penalty as stipulated in sub-rule (iv) of Rule 10 of the Rules of 1966. /^r^— (-: -10 - ^) Such stipulation is in the nature of consequence in addition to what has been exhaustively provided under Rule 8 (7) of the Rules of 1961. Such stipulation made be provided either in the order of appointment or under the Rules referred to above. Addition of such stipulation by administrative instructions amounts to overriding the rules or under any circumstance, amending the rules by providing one more contingency of withholding increments not to be treated as penalty. 16. Under these circunistances, I am unable to hold that certain executive instructions as referred to by learned counsel for the State though neither filed nor any pleadings made, could provide valid and legal basis for withholding increments during the period of probation. Consequently, it is held that the petitioner is entitled to grant of increment from his initial date of appointment. 17. In the result, petition is allowed. Petitioner is held entitled for grant of increments from the initial date of appointment in the pay-scale of Rs.2200-75-2800-100-4000/- . 18. No orders as to costs. Sd/- Manindra Mohan Shrivastava Jude Praveen