Lal Chand Pakshwar vs State Of Madhya Pradesh & Ors

Petitioner has filed this petition being aggrieved by the act of the respondents in not extending the benefits of pay scale and allowances of the post of

Constable GD.

A s per the petitioner's counsel, petitioner was appointed on 27.3.1981 on the post of Constable GD and was given badge No.1019 in the 29th Bn.

SAF Datia and on 15.6.1983, he was sent for Compounder training and after completion of such training, he was posted as Compunder 29th Bn. SAF

Datia. In support of such contention, copy of service book is enclosed as Annexure P/1. Petitioner has enclosed copy of the representation

dt.24.03.1999 addressed to the Commandant 29th Bn. SAF Datia seeking leave of the Commandant to grant him benefits of the post of Constable

seeking permission to approach the Tribunal in regard to his grievances. Annexure P/3 is also a representation dt.8.5.1999. Again a representation

was made on 17.12.2004, a copy of which is enclosed as Annexure P/4.

Petitioner has placed reliance on the order of the State Administrative Tribunal passed in O.A.No.763/1998 - Kunwarpal Singh Vs. State of M.P. and

others as Annexure P/6, wherein learned Tribunal observed that ""the applicant was appointed as Constable and was also transferred as Constable to

work as Compounder. By posting him in the Hospital to work as Compounder, his rank as Constable did not cease or change. Therefore, he is entitled

to similar treatment as given to other Constable. There is no jurisdiction for denying allowances to the applicant, merely on the ground he was

performing the work of Compounder.

In this background, the petitioner has sought relief of directions to the respondents to pay to the petitioner salary of Constable GD with all

corresponding benefits since 15.6.1983 till date and outstanding differences of salary and allowances alongwith interest @ 12% p.a. with further

directions for payment of current salary to the petitioner which the court may deem fit.

Respondents have filed the return, in which it is mentioned that the petitioner was initially appointed in the pay scale of Rs.135-2-145-2160-4-180-5-

190 as Constable GD, whereas in the year 1981, the post of Compounder carried higher pay scale of Rs.169-4-185-5-54 to 270-10300. Petitioner was

imparted computer training for a period of 10 months from 19.6.1982 to 19.4.1983 vide certificate (Annexure R/1) and after completion of such

training he was duly appointed as Compounder as is apparent from Annexure R/3. Thus, it is apparent that the petitioner was not transferred as

Constable to work as Compounder as has been observed by the State Administrative Tribunal in OA No.762/1998 Kunwarpal Singh Vs. State of

M.P. and others, however, he was appointed as Compounder as is apparent from Annexure R/3. It is also submitted that once he was appointed as

Compounder and had performed work of the Compounder and had drawn higher emoluments, then he is not entitled to turn back and say that he be

granted all the perks and allowances associated to the post of Compounder.

It is also submitted by the learned Government Advocate that the petition is highly belated and petitioner from 1983 till 2005 did not raise this issue. It

is also submitted that successive representation does not extend period of limitation and therefore the petition is highly belated and deserves to be

dismissed and be dismissed.

As far as issue of limitation is concerned, Hon'ble Supreme Court in the case of M.R.Gupta Vs. Union of India and others as reported in (1995) 5

SCC 628 has laid down the law that in regard to fixation of pay grievance is a continuing wrong giving rise to a recurring cause of action every month

on the occasion of payment of salary and such application to the extent of proper pay fixation was held not to be time barred although applicant's claim

to consequential arrears would be subject to the law of limitation i.e. he will be entitled to arrears of pay for a period of three years preceding the date

of filing writ petition and not for any period prior to that.

Learned counsel for the respondents/State has also submitted that the petitioner has never worked as Constable after 15.6.1983 and his service has

merged in the Hospital governed by Civil Surgeon, Unit Hospital Datia. It is also submitted that once the petitioner had opted to be appointed as

Compounder because he was trained as Compounder and that at that point of time, the post of Compounder was carrying higher pay scale, the post of

Constable was filled by the department and at present there is no vacant post in the cadre of Constable GD. It is also submitted that petitioner's case

is not that of transfer but that of appointment as a Compounder and therefore the petitioner has cleverly suppressed the order of his appointment as

Compounder and after twenty two years has filed petition claiming benefit because in the meanwhile with successive pay revision and reduction in

number of pay bands, after merging of several pay scales into one pay scale, now the pay scale of Constable GD and Compounder is the same but

petitioner is not entitled to get the benefits of pay scale of Constable GD because he is not performing the work of Constable GD. It is also submitted

that the post of Compounder was earlier under the Police Department but since 1983 it has gone to the Health Department and as per the Police

Regulation 297, the Police Hospital is situated at each head quarters station under the charge of and Assistant Medical Officer. It is situated in or

close to the lines and has police orderly a compounded a baits (water carrier) and a sweeper attached to it. Police Regulation 298 provides that the

Superintendent will not usually interfere in the management of the hospital or give any orders to the Assistant Medical Officer expect through the

civil surgeon. The Superintendent and the Reserve Inspector will frequently visit the hospital and the latter will occasionally make nocturne of visit in

order to see that all patients are present. Police Regulation 300 provides for punishment of hospital servants. It reads as under :-

Police hospital servant (other than the police-orderly) are entertained, punished and dismissed by the Civil Surgeon. Whenever the Superintendent

considers that a hospital servant is deserving of punishment by fine he will address the civil surgeon, who will fine the man accordingly unless for

special reasons he considers it right not to do so.

Placing reliance on such regulation, it is submitted that in fact the disciplinary control over the staff of hospital is vested in the Civil Surgeon and the

jurisdiction of Superintendent is only advisory. In view of such facts, it is submitted that the present writ petition is not maintainable.

Petitioner has not filed any copy of the appointment order as a Constable or as a Compounder. Annexure R/2 clearly reveals that the petitioner was

temporarily appointed as Constable and his services were dispensable on one month's notice. Annexure R/3 reveals that the petitioner was appointed

as Compounder and it is not a case of transfer as was dealt with by the Tribunal. Therefore, the law laid down in the case of Kunwar Pal Singh

(supra) is distinguishable and is not applicable to the facts and circumstances of the case. After having accepted the appointment as Compounder and

enjoyed the perks of the post of Compounder for over 25 years, it is not open to the petitioner to claim benefit of post of Constable because petitioner's

lien on the post of Constable did not survive after his appointment as Compounder, whereas in the case of Kunwarpal Singh (supra), said

Kunwarpal Singh was transferred on the post of Compounder, therefore, his lien on the post of Constable had survived and thus, he was held to be

entitled to all the benefits and perks of the post of Constable. In terms of the Police Regulation 300, the petitioner's disciplinary authority also changed

and role of Superintendent is only that of a visitor of the hospital to over see its maintenance and up keep.

In view of such facts, the petitioner is not entitled to claim any benefit on the post of Constable as he has not produced any material to show that his

name continues to be reflected in the seniority list of Constable GD and his lien is continuing on the post of Constable GD. Petitioner has also not

bothered to produce his appointment order on the post of Compounder to show that it was a case of transfer simplicitor and not the appointment

terminating the lien on the post of Constable GD. There is no material to substantiate the claims of the petitioner or for claiming parity with Kunwarpal

Singh. Thus, the petition fails and is dismissed.