HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Single Bench - Hon'ble Shri Justice J.K. Maheshwari WRIT PETITION (S) NO.3684/2004 Dr. Pushpa Patel Vs. The State of M.P. and another AND WRIT PETITION (S) NO.3685/2004 Dr. (Smt) Parasmani Gupta Vs. The State of M.P. and another Shri Amit S. Agarwal with Shri Rohit Mangal, learned counsel for the petitioners. Shri M.S. Dwivedi, learned Panel Lawyer for respondents. ORDER (19/08/2011) This order shall also govern the disposal of W.P. (S) No.3685/2004 (Dr. (Smt.) Parasmani Gupta Vs. State of M.P. and another), as both the petitions are arising out of common order dated 8/12/2004 (Annexure- P/11) whereby recovery of Rs.55,198/- against petitioner-Dr. Pushpa Patel and recovery of Rs.93,284/- against petitioner-Dr.(Smt.) Parasmani Gupta has been directed. In the said order, as per audit objection dated 2 12/8/2004 in point No.1, 2 and 3 of condition No.5 it has been mentioned that two advance increments have been granted to the persons who have passed out the Ph.D. degree prior to 1/1/1996 is arbitrary, however, recovery of such advance increments has been directed. Being aggrieved by the said order, the petitioners have filed these two petitions. 2. For the convenience, the facts are being taken from W.P. (S) No.3684/2004. The petitioner was appointed on adhoc Assistant Professor on 7/10/1983. She has passed out the Ph.D. degree in the year 1984. Thereafter she was regularized w.e.f. 30/6/1987. The Government has issued circular dated 11th October, 1999 directing payment of senior scale w.e.f. 1/1/1996 in the light of the circular issued by the University-Grant- Commission in the pay scale of Rs.12,000-18,000/-. As per clause 9 (c ), if an Assistant Professor possessing the Ph.D. degree on the date of recruitment , would be entitled for four increments and in case of M.Phill two increments. It has further been clarified in clause -9(b) that on the date of recruitment if the Assistant Professor possessing M.Phill degree and later on within two years passed out Ph.D. degree, then the said Assistant Professor shall be entitled for one increment more. As per clause 9 (c ), it is clear that Ph.D. degree holder Assistant Professor would be entitled for 3 two increments at the time of grant of senior selection scale. The petitioner was extended the benefit of senior selection scale as per order dated 29/11/2001 (Annexure-P/9) w.e.f. 27/7/1998. The fixation granting two increments were ordered on 6/2/2002 (Annexure-P/10). Later on by the order impugned dated 12/8/2004 (Annexure-P/11) on account of audit objection, the said benefit was withdrawn. 3. It is contended that even of demand by the petitioner, audit objection has not been supplied. Thus, the order impugned has been issued without supplying the audit objection and without furnishing any opportunity of hearing, therefore, the action as taken by the respondents is gross violation of principles of natural justice. 4. The respondents by filing their reply have justified their action and so far as the fact with respect to appointment, passing out the Ph.D. degree and date of grant of senior selection scale has not been disputed. It is merely said that after the circular dated 11th October, 1999 (Annexure-P/7), Commissioner, Higher Education Department has issued a clarification as per circular dated 19/24 May, 1989 (Annexure-R/2) wherein it was mentioned that if the Assistant Professors obtained Ph.D. degree after 1/1/1996, those Assistant Professors may be entitled for the benefits 4 of two increments, others are not entitled. In the present case the petitioner has passed out the Ph.D. degree prior to 1/1/1996, however, as per audit objection, order of recovery for grant of two increments has rightly been directed by the order impugned. In view of forgoing, it is urged that the order Annexure-P/11 dated 12/8/2004 has rightly been passed. 5. After having heard learned counsel for the parties and for the sake of convenience, clause 9 (a), (b), (c) and (d) is required to be quoted which reads as under : "9 (v) ih0 ,p0 Mh0 ,e0 fQy mif/A /kkjd vkosndksa dh lgk;d izk/;kid in ij fu;qfDr ds le; dze'k% 4 ,oa 2 osruof};ksa dh ikrrk gksxh A 9 (c) fu;qfDr ds le; ,e0 fQy mikf/k /kkjdksa }kjk fu;qfDr ds 2 o"kZ ds vUnj ih0 ,p0Mh0 mikf/k izkIr djus ij ,d osruof} dh ikrrk gksxh A 9 (l) ih0 ,p0Mh0 mikf/k /kkjd f'k{kd dks izos'k Jzs.kh osrueku@jhMj osrueku esa LFkkuu gksus ij nks vfxze osru of};ksa dh ikrrk gksxh A 5 9 (n) izR;sd dk;Zjr f'k{kd dks vius lsokdky esa ih0 ,p0Mh0 mikf/k izkIr djus ij nks vfxze osru of};ksa dh ikrrk gksxh A" 6. In the opinion of this Court, all the four clauses are independent. In the present case clause 9(a) is having no application. As per the pleadings made by the parties, it is not clear that the petitioner would be entitled to get the benefit either under clause (b) or under clause (c). It is also not very clear that the benefit under clause 9 (c) has not been extended. In this respect some averments have been made in the rejoinder, which are not satisfactory. It is the case of the petitioner that she has not been given the benefit of the advance increments under clause 9 (c) of the circular dated 11th October, 1999 (Annexure-P/7), however, if such benefit has been granted vide Annexure-P/9 and P/10, it cannot be withdrawn that too without affording an opportunity of hearing. In the reply filed by the respondents, observance of the principles of natural justice has not been pleaded. In such circumstances, in the opinion of this Court, this petition deserves to be disposed of on the following directions : (i) The order impugned Annexure-P/11 dated 8/12/2004 is hereby quashed with direction to the 6 respondents to afford an opportunity of hearing to the petitioner and to pass fresh order; (ii) The petitioner shall be at liberty to show before the competent authority that even after acquiring the degree of Ph.D., benefit of two advance increments have not been extended till passing the order Annexure-P/9 dated 29/11/2001. On making such averments, it be verified by the authorities prior to passing of the fresh order; (iii) It is made clear that the circular dated 3/11/1989 (Annexure-R/3) and circular dated 12/2/1988 (Annexure-R/6) having no application in the facts of the present case because the claim is based upon the circular Annexure-P/7 dated 11th October, 1999, however, it shall not be considered while examining the case afresh. (iv) It is further made clear that if the petitioner has not been extended the benefit of two advance increments during her service tenure, then it shall be 7 extended in the light of clause 9(c) of the circular dated 11th October, 1999 if he is not found entitled then by affording an opportunity of hearing to the petitioner a reasoned order be passed. (v) The aforesaid exercise must be completed within a period of our months from the date of communication of this order. (J.K. Maheshwari) Judge (ts) 8 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Single Bench - Hon'ble Shri Justice J.K. Maheshwari WRIT PETITION (S) NO.3685/2004 Dr.(Smt.) Parasmani Gupta Vs. The State of M.P. and another Shri Rohit Mangal, learned counsel for the petitioner. Shri M.S. Dwivedi, learned Panel Lawyer for respondents. ORDER (19/08/2011) For the reasons stated in the order passed today by me in W.P. (S) No.3685/2004 (Dr.Pushpa Patel Vs. The State of M.P. and another), this petition is also disposed of. (J.K. Maheshwari) Judge (ts)