Moolchand Kushwaha vs State Of M.P. And Others

In this petition filed under Article 226 of the Constitution the petitioner has prayed for following relief:-

(i) The Hon'ble Court may kindly be pleased to direct the respondents by issuing writ in the nature of mandamus and other appropriate writs for

granting Second Kramonnati to the petitioner w.e.f. 15.10.2002 by giving higher pay scale with all consequential benefits and accordingly fixation.

(ii) Any other relief, which this Hon'ble court deem fit and proper in favour of petitioner may also be given, in the interest of justice.

The petitioner submits that he was initially appointed as Chainman (Class-IV) in the pay scale of 125-150. Thereafter, pursuant to a direct

recruitment, he was appointed on the post of Lower Division Clerk (LDC) by order dated 13.10.1978 (Annexure-P-2) in the pay scale of 169-300.

The petitioner was promoted by order dated 26.07.2004 (Annexure-P-3) as A.G.-II in the pay scale of 4000-6000. The petitioner prayed for grant of

Second Financial Up-gradation (Kramonnati) after rendering 24 years of service. The said demand of the petitioner was subject matter of

correspondence between the authorities. The Deputy Director, Agriculture by communication dated 30.03.2005 (Annexure-P-6) informed the

respondent No.2 that the petitioner was appointed as LDC on 16.10.1978 and completed his 24 years of service on 15.10.2002. His claim for grant of

Second Kramonnati was considered by the appropriate committee and said committee found him suitable and recommended for grant of Second

Kramonnati. The directorate by communication dated 29.08.2005

(Annexure-P-7), sought clarification again whether the petitioner was “promotedâ€​ as A.G.-III or occupied said post as appointee.  Â

In addition, it was asked whether the petitioner's pay scale is Rs.3050-4590/- or Rs.3500-5200/-. In turn, the Deputy Director by communication

dated 10.09.2005 (Annexure-P-8) clarified that the petitioner was “appointed†on 16.10.1978 as A.G.-III/LDC and on promotion to A.G.-II, he is

drawing salary as 4000-6000. The Deputy Director by communications dated 10.04.2006 (Annexure-P-9) and 07.05.2008 (Annexure-P-10) reiterated

his stand and recommended for grant of Second Kramonnati to the petitioner w.e.f. 15.10.2002. Alongwith this letter dated 07.05.2008, the petitioner's

appointment order was forwarded to the directorate. The petitioner by placing reliance on Kramonnati Yojna dated 17.03.1999 prayed for grant of

Second Kramonnati w.e.f. 15.10.2002. Â

Per contra, Shri Rajesh Tiwari, learned Government Advocate for the State submits that the petitioner was promoted twice during 24 years and,

therefore, question of granting him Second Kramonnati does not arise. The stand of respondents is that the petitioner was “promoted†as LDC,

and he was not appointed. Reliance is placed on the Service Book (Annexure-R-1) which contains an entry that the petitioner was promoted as LDC.

Similarly, the communication of Joint Director dated 25.07.2011 (Annexure-R-2) shows that the petitioner was treated to be promoted as LDC by

order dated 13.10.1978.  Â

Shri Rajesh Tiwari, learned Government Advocate during the course of arguments placed reliance on a G.A.D. circular dated 27.09.1975 and

15.11.1984 and contended that Government had taken a conscious decision that certain number of posts of LDCs in all the departments are to be filled

up by way of promotion.Â

Shri Tiwari urged that a careful and conjoint reading of Annexures-P-2 and P-3 shows that the petitioner was actually promoted as LDC and not

appointed on the said post. No other point is pressed by learned counsel for the parties.

I have heard the parties at length and perused the record.

If contention of Shri Rajesh Tiwari, learned Government Advocate is accepted that the petitioner was “promoted†as LDC, the petitioner

cannot claim benefit of Second Kramonnati. It is a matter of common knowledge that benefit of Kramonnati/financial upgradation is given to such

employees who have not been given benefit of promotion and being stagnated in the same capacity for quite some time. Thus, the core issue is

whether the petitioner was “appointedâ€​ as LDC or he was “promotedâ€​ as LDC.

In the considered opinion of this Court, the Statutory Recruitment Rules framed under proviso to Article 309 of the Constitution can throw light on

this aspect. The executive order filed by the petitioner and by the respondents are diametrically opposite. The documents filed by the petitioner show

that the Deputy Director has repeatedly mentioned that the petitioner was “appointed†as LDC whereas service book and order of Joint Director

(Annexure-R-2) take a different view. Thus, it is the recruitment rules namely M.P.

Sub-ordinate Agriculture (Ministerial) Service Recruitment Rules, 1972, which may clarify the said aspect. Schedule-II of the Rules makes it clear

that the post of LDC is to be filled up 100% by direct recruitment. Thus, the gray area created because of rival stand of the parties is now clear in the

teeth of aforesaid schedule which clarifies that the post is to be filled up 100% by direct recruitment. So far executive instructions mentioned in

Annexure-P-2 and another instruction of G.A.D. dated 15.11.1984 are concerned, in the considered opinion of this Court, this is trite law that no

executive instruction can supplant or superceed a statutory provision. If statute provides that post is to be filled up 100% by directed recruitment, the

said method can be changed only by amending the recruitment rules and it cannot be altered or supplanted by executive instructions. This is trite law

that if a statute prescribes a thing to be done in a particular manner it has to be done in the same manner and other methods are forbidden. See 2002

(1) SCC 633 (Commissioner of Income Tax vs M.H. Anjum Ghaswala.) and judgment of this Court reported in 2011 (2) MPLJ 690 (Satyanjay

Tripathi Vs. Banarasi Devi). In the light of aforesaid, I am inclined to accept the contention of Shri Chansoriya that the petitioner was actually

appointed on the post of LDC w.e.f. 13.10.1978. Thus, he is entitled to get the benefit of Second Kramonnati w.e.f. 15.10.2002. The order of Deputy

Director, Agriculture dated 30.03.2005 shows that the Screening Committee has already found him as suitable and directed for grant of Second

Kramonnati w.e.f. 15.10.2002. In this view of the matter, I deem it proper to direct the respondents to grant the benefit of Second Kramonnati to the

petitioner w.e.f. 15.10.2002 within 90 days from the date of communication of this order, failing which it will carry 12% interest till date of actual

payment.  Â

Since the petitioner has already retired on attaining the age of superannuation, needless to mention that his retiral dues etc. should be revised on

the basis of grant of Second Kramonnati. The aforesaid exercise shall also be completed with the aforesaid period.

The petition is allowed. No costs.