--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: Hon. Mr. S. C. Sharma, J WRIT PETITION NO. 1608/09 (S) SWADESH AGRAWAL Vs. Union of India & others * * * * * [ J U D G M E N T ] ( 11/11/2010) The petitioner before this Court serving as a Jr. Stenographer under the Maharshi Sandipani Rashtriya Veda Vidya Pratisthan, Ujjain has filed this present petition claiming financial upgradation under the Assured Career Progression Scheme on completion of 12 years of service w.e.f. 1/7/03. Petitioner has also prayed for quashing of order dt. 20th December 2004 by which 2 advance increments granted to the petitioner w.e.f. 24th December 2004 have been withdrawn. The petitioner has also prayed for issuance of an appropriate writ, order or direction directing the respondents to consider his case for promotion to the post of Sr. Stenographer and to promote him on the post of Sr. Stenographer. The contention of the petitioner is that he was appointed as a Jr. Stenographer on 1/7/93 on adhoc basis on a consolidated salary of Rs.1200/- per --- 2 --- month and thereafter another order was issued regularising him on 1/10/94. Petitioner has further stated that a policy was introduced for grant of financial upgradation known as Assured Career Progression Scheme as contained in Annexure P/7 dt. 29th June 2004 and he was entitled for grant of upgradation on completion of 12 years of service w.e.f. 1/7/93. However, the respondents have taken into account the services rendered by the petitioner w.e.f. 1/10/94 in the matter of grant of upgradation and he has been granted upgradation w.e.f. 1/10/06 whereas he is entitled for grant of upgradation w.e.f. 1/7/05. petitioner has further stated that the two advance increments were granted to him by the then Vice Chairman in the year 2004 and by no stretch of imagination without granting any opportunity of hearing the advance increments granted to him could have been withdrawn. He has also argued that the action of the respondent is in violation of principles of natural justice and fair play and therefore the impugned order withdrawing two advance increments deserves to be quashed by this court. Petitioner has also stated that a post of Sr. Stenographer is available in the establishment and therefore the respondents be directed to fill up the post by holding a DPC in the matter. A reply has been filed --- 3 --- in the matter and the contention of the respondent is that the petitioner was initially appointed on 1/7/93 on adhoc basis for a period of 3 months on a fixed salary of Rs.1200/- per month. It has also been stated that the petitioner was not regularised w.e.f. 1/10/94 on the contrary an order was issued on 30/9/1994 appointing the petitioner purely on adhoc and temporary basis in a pay scale of Rs.1200 – 2040/-. The respondents have further stated that the petitioner was appointed on temporary basis only by an order dt. 31/3/95 and therefore as provided under the scheme framed by the Government of India he is entitled for grant of upgradation as per paragraph 3 of the scheme dt. 29/6/04 only on completion of 12 years of service w.e.f. 31/3/95. the respondents have stated that the petitioner is not entitled for grant of upgradation w.e.f. 1/7/05 as prayed by him. In respect of the withdrawal of two advance increments the respondents contention is that the then Vice Chairman has erroneously granted the benefit to the petitioner and an audit objection was raised in the matter of grant of increments. A show cause notice was issued to the Board and thereafter the advance increments granted to the petitioner have been withdrawn. It has been argued before this court that there is no statutory provision --- 4 --- empowering the Chairman or the Vice Chairman to grant 2 advance increments on his whims and fancies and therefore the advance increments granted without there being any provision of law have been withdrawn consequential recovery has been rightly ordered in the matter. In respect of grant of promotion to the petitioner it has been stated that there is no clear vacancy of Sr. Stenographer available in the Pratisthan and therefore the question of granting promotion to the petitioner on the post of Sr. Stenographer does not arise. Respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the admission stage itself with the consent of the parties. In the present case the petitioner before this court was initially appointed by an order dt. 1/7/93 purely on adhoc basis as a Stenographer for a period of 3 months w.e.f. 1/7/93. He was paid a consolidated salary of Rs.1200/- per month. The respondents have thereafter issued another order dt. 30/9/94 and by the aforesaid order the petitioner was again appointed purely on adhoc basis in the pay scale of Rs.1200 – 2040. The respondents have issued another order on 31st March 1995 and --- 5 --- for the first time the petitioner was appointed on temporary basis in the regular pay scale of Rs.1200 – 2040 + usual allowances as admissible. The Government of India has framed a scheme for grant of financial upgradation which is enclosed as Annexure P/ 7 applicable to the respondent Pratisthan being an organisation of the Government of India and the same provides for Assured Career Progression, meaning thereby grant of higher pay scale on completion of 12 years regular service. Paragraph 3 of the aforesaid scheme reads as under : “3. In this regard, it is pointed out that, in terms of condition number 4 of the ACP Scheme,the first financial upgradation shall be allowed after 12 years of regular service and the second financial upgradation after 12 years of regular service from the date of first financial upgradation , subject to fulfilment of the prescribed conditions. Condition number 5.1 further provides that two financial upgradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already received one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the Scheme. Condition number 15 provides that, subject to condition number 4, where the employees have already completed 24 years of regular service, with or without a promotion, the second --- 6 --- financial upgradation under the Scheme shall be granted directly”. In the present case the petitioner before this court was not appointed in a regular pay scale or in a regular service w.e.f. 1/7/93. The appointment order enclosed as Annexure R/1 reflects that he was appointed for a period of 3 months on a consolidated pay of Rs.1200/- that too purely on adhoc basis and therefore the services rendered by the petitioner w.e.f. 1/7/99 cannot be treated as a regular service. The respondents have granted regular pay scale to the petitioner only on 30/9/94 and they have granted upgradation to the petitioner by taking into account services rendered w.e.f. 30/9/94 though the petitioner was again appointed on adhoc basis on 30/9/94, however, as the respondents have already granted benefit of upgradation to the petitioner w.e.f. 1/10/06, the question of issuing of an appropriate writ, order or direction directing the respondents to grant the benefit of upgradation to the petitioner w.e.f. 1/7/05 does not arise as the initial service was purely on adhoc basis and that too on a consolidated pay of Rs.1200/-. The petitioner in the present case was granted two advance increments by the order by Chairman which is enclosed as --- 7 --- Annexure P/9. No statutory provision of law has been brought to the notice of this court which empowers the Vice Chairman or the Secretary to grant to special increments. Grant of promotion, grant of increments and grant of higher pay scale in the matter of service carrier of an individual cannot be based upon the whims and caprice of higher authorities. It has to be in consonance with the statutory provision. There is no statutory provision which empowers the Vice Chairman or the Secretary to grant the aforesaid increments and therefore the same was rightly objected by the audit authorities. After receiving the objection from the audit authorities the matter was reviewed by the Board and the advance increments granted to the petitioner has been withdrawn. The petitioner's contention is that principles of natural justice and fair play have not been followed while withdrawing the two advance increments in the matter. Principles of natural justice and fair play cannot be applied in a straight jacket formula in each and every case. In the present case as no statutory provision has been brought on record empowering the Secretary or the Vice Chairman to grant two advance increments, the action of the Chairman and the Secretary was void ab initio and therefore the question of --- 8 --- issuance of show cause notice to the petitioner in the peculiar facts and circumstances of the case before withdrawing the advance increments does not arise. However, as the petitioner was not at fault the respondents cannot recover the amount already paid to the petitioner by virtue of grant of advance increments keeping in view the judgment delivered by the apex court in the case of Shyambabu Verma Vs. Union of India & Ors., reported in 1994 (1) SCC 683 and Sahibram Vs. State of Haryana reported in 1995 (1) SCC 18 Resultantly pay fixation done by the respondents after withdrawing the advance increments is upheld. However, in case any recovery has been inflicted by the respondents in the matter the respondents shall refund the amount recovered from the petitioner. So far as the question of grant of promotion to the petitioner is concerned, the respondents have categorically stated that there is no post of Sr. Stenographer available in the establishment. It has been stated that the post of Sr. Stenographer is being held by one Sanjay Shrivastava who is still holding lien on the post and therefore as Shri Sanjay Shrivastava is holding a lien in respect of post of Sr. Stenographer the question of directing the respondents to --- 9 --- consider the case of the petitioner does not arise. However, it is made clear that as and when the post is available in the Pratisthan, the respondent shall fill up the post in question keeping in view the statutory provision on the subject. With the aforesaid this petition stands disposed of. No order as to costs. (S. C. SHARMA) J U D G E KR