Amrit Lal Rajpoot vs State of M.P. and Others

Sujoy Paul, J.—Since the questions involved in these writ petitions are common, with the consent of parties, matters are analogously heard and decided by this common order. The petitioner by filing this petition under Article 226 of the Constitution of India, has prayed for quashing of the order dated 21.12.2009 (Annexure P-11) and prayed for a direction to the respondents to appoint/retain the petitioner in P.H.E. Department and also fix his seniority from the date of his initial appointment with further benefits.

Facts are taken from W.P. No. 5812/2010.

The petitioner was appointed on 1/6/1990 on daily rated basis and was working as Sub Engineer. In the year 1991 the petitioner was removed from service against which he preferred an application before the Labour Court and the Labour Court held that termination was illegal and directed his reinstatement. The order of Labour Court was challenged before the Industrial Court which dismissed the appeal of the employer. Consequently, the petitioner was reinstated in service.

Despite continuous service of the petitioner, he was not made permanent which persuaded him to file an application u/s 31(3) of the M.P. Industrial Relations Act, 1960 (MPIR Act) before the Labour Court seeking his classification as permanent employee. The Labour Court by order dated 27.11.1996 (Annexure P-1) granted the desired relief to the petitioner and directed the employer to classify the petitioner on the permanent post of Sub Engineer within 30 days. The difference of salary from 27.2.1994 was directed to be paid to the petitioner. The employer''s appeal No. 417/MPIR/96 was rejected by the Industrial Court on 19.8.1999. The Writ Court in W.P. No. 878/2000 dated 14.8.2002 affirmed the orders passed by the Labour Court and the Industrial Court aforesaid.

The writ court took cognizance of certificate (Ex. P-2) issued by the Executive Engineer in its order which was filed before the Labour Court. The Executive Engineer in the said Ex. P-2 certified that the petitioner was working as Sub Engineer w.e.f. 1/6/1990. The Court opined that the employee/petitioner is working against a regular post of Sub Engineer from the date of his appointment. His work and conduct is satisfactory. On the basis of aforesaid, it was held that the petitioner had attained the status of a permanent employee under proviso to Clause 2(i) and 2(vi) of the Standard Standing Order and his termination is unsustainable. This order of writ Court was unsuccessfully challenged before the Division Bench in W.A. No. 671/2010 which was dismissed on 7/1/2011.

It is contented by the petitioner that after the order of the Labour Court, the respondents have started regular pay scale to the petitioner which he was continuously getting. Thereafter, by order dated 30/7/2005 (Annexure P-7), the department passed an order whereby they have classified the petitioner w.e.f. 1/2/1991 a date which is prior in time than the date mentioned in Labour Court''s order. Thereafter, the respondents issued an order Annexure P-8 whereby directing the employees to undergo a selection process/written examination for the purpose of regularization. By Annexure P-9, the department included the name of the petitioner who participated in the selection and petitioner''s name finds place in the merit list. Thereafter, by order dated 21.12.2009 (Annexure P-11) the employees who succeeded in the written examination were given posting. The petitioner is posted to Rural Engineering Service.

By placing reliance on Annexure P-12, it is stated that other employees who had succeeded in the written examination are retained in the same department, whereas the petitioner is being sent to a different department without his consent, which is bad in law. By placing reliance on document dated 11.11.2009, it is contended that similarly situated employees have been given seniority from the date of the order of the Labour Court. On the basis of aforesaid facts, it is prayed that the order dated 21/12/2009 whereby the petitioner is directed to be posted to Rural Engineering Service be set aside by directing the P.H.E. Department to continue his services by assigning him seniority from the date of his initial appointment for all future purposes.

The said prayer of the petitioner is opposed by the respondents by filing reply. Mrs. Sangeeta Pachori, learned Dy. G.A. has relied on various paragraphs of the reply. In addition, the judgment of Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, has been heavily relied upon and on the strength of that judgment it is submitted that regularization does not mean permanency. Since there is no post in the parent department, the petitioner was sent to Rural Engineering Service and there is no illegality in the order. The petitioner has appeared in the examination and accepted scrutiny and, therefore, he cannot challenge the same. The permanency as per standing order only confers a right of permanent employee pursuant to which he cannot be removed without adopting due process of law. No further benefit is accrued to the classified employee. Certain more judgments are relied in page 7 of the reply to submit that a person appointed dehors the rules and not against vacant post and not through selection process prescribed under the Recruitment Rules cannot be regularized, nor benefit of regular pay scale can be granted to him.

I have bestowed my anxious consideration on the rival contentions advanced by the learned counsel for the parties at Bar and perused the record.

This is not in dispute between the parties that the petitioner preferred an application against his termination before the Labour Court. His termination was set aside by the Labour Court and before the higher forum the said order of the Labour Court was not disturbed and petitioner was reinstated. Then he filed Case No. 137/96 before the Labour Court which directed his classification on the permanent post of Sub Engineer. This order of Labour Court was challenged before the Industrial Court, Writ Court and the Division Bench of this Court. The findings of the Labour Court were not disturbed till Division Bench. In absence of any further challenge, the order of the Labour Court aforesaid had attained a finality.

The Standard Standing Orders are made under the provisions of M.P. Standard Standing Order Employment Act, 1961. The provisions of standing order are statutory in nature. This cannot be compared with any executive instructions. If any mode of induction in the standing orders is prescribed, it has to be treated as statutory mode of induction under the law. Considering the aforesaid, the order of the Labour Court was not disturbed and accordingly, the petitioner got the status of permanent employee.

In the aforesaid facts and circumstances, in the considered opinion of this Court, the judgment of Umadevi (supra) cannot be pressed into service in the present case. The judgment in Umadevi dealt with case of regularization under the executive instructions and does not deal with specific provisions of Standard Standing Order which are statutory in nature. In the present case, where under the statutory provision, the petitioner''s rights are adjudicated and affirmed till this Court, it is no more open for the department to reopen it under the garb of judgment of Umadevi (supra). In other words, the petitioner''s right and entitlement regarding classification is settled after the dismissal of the writ appeal and, therefore, that issue cannot be permitted to be reopen by the respondents in any manner. Accordingly, the petitioner became a permanent Sub Engineer on classification pursuant to the order of the Labour Court. Apart from this, in the facts and circumstances of the petitioner''s case filed before the Labour Court and as per the law prevailing he succeeded and got the benefit of classification on permanent post. This judgment has attained finality between parties inter se. This is trite that subsequent change in law will have no adverse impact on a matter which has attained finality. The earlier decision between the parties operates as res judicata. In other words, the subsequent legal position even if altered will not have the effect of reopening issue between the parties and the judgment would operate as res judicata regardless of subsequent change in the eye of law. This view is taken by Supreme court in Kalinga Mining Corporation Vs. Union of India (UOI) and Others,

Interestingly, the respondents on their own passed the order dated 30.7.2005 whereby they themselves classified the petitioner as permanent employee w.e.f. 1/2/1991. This date is prior in time than the date of the classification by Labour Court. Thus, the respondents have no right to say that petitioner is either not classified or not became permanent pursuant to the order of the Labour Court read with the Office Order dated 30.7.2005.

It is gathered that the respondents had directed various daily wager employees to undergo written examination/selection for the purpose of their regularization. This mode may be permissible under the executive instructions or as per the policy decision taken by the respondents. The pivotal question before this Court is whether this course was available for the respondents qua the petitioner, who stood classified as a permanent employee pursuant to the Court order, which got a stamp of approval till the Division Bench of this Court.

In the considered opinion of this Court, the said course was not permissible qua the petitioner because he stood classified as a permanent employee and once he became permanent employee under the law, there was no question of considering his case for regularization by directing him to undergo the written examination. The petitioner has a valuable legal right to enjoy the status of permanent employee from the date of his classification.

The order Annexure P-11 dated 21.12.2009 is passed on the basis of the result of the writ appeal. The petitioner is posted to Rural Engineering Service. Since the petitioner stood classified much before the examination and result, the said examination cannot be a reason to switch over and post the petitioner to another department. Once the petitioner got classified as permanent employee in his own department, his conditions of service are governed by the Statutory Recruitment Rules and other service conditions attached to his statutory post and to his department. The respondents are unable to show any provision by which they can transfer or shift an employee of one department to another department.

Accordingly, the action of the respondents in sending the petitioner to Rural Engineering Service is without any authority of law. The petitioner, who became a permanent employee has a valuable legal right to continue in the same department in accordance with law. Consequently, the order Annexure P-11 dated 21.12.2009 to the extent the petitioner is sent to Rural Engineering Service is set aside. On the basis of aforesaid analysis, the petitioner is entitled to the relief claimed. Hence, the impugned order dated 21.12.2009 to the extent indicated above is set aside. The respondents are directed to retain the petitioner in P.H.E. Department and fix his seniority from the date of his classification as a permanent employee in accordance with law. The petitioner shall be entitled to get other benefits arising thereto. The petition is allowed. No cost.