Sita Sharan Tiwari vs The State of Madhya Pradesh

Calling in question the tenability of an order dated 6.9.2012 passed by the writ court in Writ Petition No.10261/2008 (S), this appeal has been filed by the appellant/employer under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.

Appellant was appointed on regular basis as a Lower Division Clerk in the institute of respondent No.5. He joined his duties and started working with effect from 10.10.1991. The institute was receiving grant-in-aid in accordance to the provisions of Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 and accordingly the institute took up the matter with the State Government and directed for grant for one post of Lower Division Clerk. Initially, the 2 State Government sanctioned the post in the regular pay scale of Lower Division Clerk and passed an order on 27.7.1996 whereby one post of Lower Division Clerk was sanctioned and it was indicated that the staff should be appointed in accordance with the rules. However, after sanctioning the post and allowing grant-in-aid for one post of Lower Division Clerk, a specific order was passed on 30.8.1997 for the first time wherein it was stipulated that the post of Lower Division Clerk was to be filled up on part time basis on a fixed salary of Rs.400/- per month and as a result thereof, it seems that the appellant, who was appointed as regular Lower Division Clerk, was not paid the regular salary of the post but only paid the fixed salary treating him to be part time employee. The representation having been dismissed, the writ petition was filed.

In the writ petition, the writ court found that once sanction was granted to the society to fill up the post of Lower Division Clerk for which grant-in-aid was also sanctioned, it was not appropriate on part of the State Government to curtail payment @ Rs.400/- per month and to ensure that the payment is made only as a part time employee. The writ court after taking note of the 3 facts issued the following directions:-

''''This being so, it is necessary on the part of the District Education Officer to examine whether actual grant was paid for the purpose of disbursement of salary to the Lower Division Clerk on regular basis or not. If such a grant was paid by the State Government, it was the duty on the part of the respondent No.5 to pay the salary of the petitioner in the regular pay scale.

In view of the aforesaid, this writ petition is disposed of with a direction to respondent No.4 to get an enquiry conducted in respect of the grant sanctioned and disbursed to respondent No.5 and if it is found that the grant as a whole claimed by the respondent No.5 was paid by the State Government, to direct respondent No.5 to pay the regular salary of the post of Lower Division Clerk to the petitioner from the said grant. All the arrears be calculated from the date of receipt of grant and be paid to the petitioner within a period of three months from the date of receipt of certified copy of the order passed today.

With the aforesaid, the writ petition is finally disposed of.

Certified copy as per rules.''''

The appellant feels aggrieved by the aforesaid direction to the extent as it directs an inquiry by the District Education Officer and it is the case of the appellant that once the post is sanctioned and the appellant is found to be working on the said post, a mandamus should have been issued for paying regular salary to the appellant and relegating the matter to the District Education Officer for conducting inquiry is not proper. Based on the aforesaid ground, this writ appeal has been filed by the appellant.

However, now from the return filed by respondent No.5, it transpires that the direction issued by the writ court as indicated herein has already been complied with and inquiry has already been conducted by the competent authority and report dated 1.2.2013 (Annexure R-5/6 has also been received.

It is seen from the record that after the directions were issued by the writ court as indicated herein, a three members committee was constituted and Assistant Director (Education) was appointed as a 5 Chairman of the said committee. The committee conduced its deliberation and submitted its report as is evident from Annexure R-5/6 filed by the respondent No.5. In the report, the committee has so decided the matter:-

The committee having been found that the post was sanctioned as a regular post and only part time payment of Rs.400/- per month was sanctioned. Now in the light of the inquiry report, the State Government should release the entire grant to the institute as already directed by the writ court and to ensure that the payment is made to the appellant as per his entitlement. Directions issued by this court for making payment after conclusion of the inquiry be complied with within a period of sixty days from the date of receipt of certified copy of this order. As the State Government has not challenged the order passed in the writ petition, nor finding of the inquiry officer is challenged, the State Government should comply with the directions within the aforesaid period failing which the amount to be paid to the appellant after sixty days shall carry interest @ 7% per annum from the date of 7 lapse of sixty days till its payment.

With the aforesaid directions, the writ appeal is disposed of accordingly.

Certified copy as per rules.