Bhagwan Das Manikpuri vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Since W.P. Nos. 3221, 3277, 3398, 3611, 6125, 6126, 6127, 6128, 6129, 6130, 6131, 6426, 6427, & 6428 of 2006 and W.P. (s) Nos. 2959, 2960, 2961, & 2975 of 2007 involve the same question of law as to whether the petitioners are entitled to revision pay scales in accordance with the M.P. Workcharged and Contingency Paid Employees Rules, 1998 (for short "the Rules, 1998"). The facts of these writ petitions are also common and, as such, they are being disposed of by this common order.

The facts, in nutshell, as projected by the petitioners, are that the petitioners have been appointed as cook, Water Man, Cook, Water Man, Water Man, Water Man, Water Man, Cook, Cook, Watchman, Water Man, Cook, Water Man, Cook, Water Man, Water Man, Cook, Water Man and Watchman, respectively in various hostels/establishment by the Collector, Bilaspur, by fixing monthly pay initially for 89 days. Thereafter, the same continued and the petitioners are still working on monthly basis from contingency fund. By order dated 17-7-1990 (Annexure-P/2 in W.P. No. 3221 of 2006) the services of the petitioners as contingency paid employee were regularized. Forth pay scale was granted, however, the benefit of fifth pay scale as revised was not granted to the petitioners, despite the fact that the same has been accepted by the State Government and the Rules, 1998 were made thereon. Some of the similarly situated employees. Namely, Shri Bholaram Anant, Water Man, Scheduled Caste Boys Hostel, nawan, Pandariya, District Kawardha and other persons posted in the office of Assistant Commissioner, Tribal Development, Bilaspur namely; Shri Jaldas, Shri Gaurishankar Dubey and. other similarly situated employees who were appointed after 31-12-1988 are also receiving the benefit of revised pay scale on the basis of recommendation of Fifth Pay Commission. The petitioners are being denied the benefit of fifth pay scale. Thus, these petitions.

Shri Swarnkar, learned counsel appearing for the petitioners, would sumbit that Secretary to the then State of Madhya Pradesh, Finance Department by circular dated 26-6-1998 (Annexure -P/7 in W.P. No. 3221 of 2006) issued guidelines for grant of revision pay scale w.e.f. 1-1-1996 in accordance with the provisions of the Rules, 1998. Despite the circular issued in the name of Governor no steps have been taken till date for grant of relief w.e.f. 1-1-1996. The petitioners are entitled to the benefit of fifth pay scale in accordance with the Rules, 1998 as well as circular dated 26-6-1998 (Annexure -P/7 in W.P. No. 3221 of 2006).

Some of the petitioners approached this Court earlier raising their grievances. In W.P. No. 123 of 2006 (Bhagwan Das Manikpuri v. State Chhattisgarh & Others) the coordinate Bench of this Court by order dated 12-01-2006 (Annexure - P/10 in W.P. No. 3221 of 2006) disposed of the petition reserving liberty to the petitioner therein to make a detailed representation to the authorities concerned. It was further directed that in the event representation was submitted, the competent authority of the respondents therein would decide the same on its own merits as expeditiously as possible preferably within a period of three months form the date of receipt of the representation. Bhagwan Das Manikpuri made a representation accordingly to the Assistant Commissioner, Trible Welfare, Bilaspur, on 25-01-2006 (Annexure - P/11 in W.R No. 3221 of 2006). The said representation was rejected by order dated 19-05-2006 (Annexure - P/12 in W.P. No. 3221 of 2006) on the ground that Bhagwan Das was not found fit for regularization and consequently the benefit of fifth pay scale was not granted, as his appointment was made after 31-12-1988.

On the other hand, Shri Thakur, learned Dy. Advocate General appearing for the State, would submit that the petitioners were appointed after 31-12-1988, thus in view of the circular dated 22-11-1988 (Annexure -R/1) the petitioners are not entitled to the benefit of revised pay scale. The petitioners were not even entitled to fourth pay scale, which was wrongly given to them. The benefit of revised pay scale granted to Shri Jaldas and Shri Gaurishankar Dubey was because of typographical error. The petitioners cannot claim the benefit of pay scale on the ground that the same has been granted to others.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

The identical issue came into consideration with regard to gangmen in Govind and Others Vs. State of C.G. and Others, wherein this Court observed as under:

Rule 2 (b) & (h) of the Rules 1976 and Rule 2 (a) & (b) of the Rules, 1979 define contingency paid employee'' and work charged employee'', similarly, as under :-

Rule 2(b) and 2(h) of the Rules, 1976 :-

"2. (b) Contingency-paid Employee'' means a person employed for full time in an office on establishment and who is paid on monthly basis and whose pay is charged to "office contingencies", excluding the employees who are employed for certain periods only in the year"

"2. (h) Workcharged Employee'' means a person employed upon the actual execution as distinct from general supervision of a specified work or upon subordinate supervision of departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster roll employed on the work".

Rule 2. (a) and 2.(b) of the Rules, 1979 :-

"2. Definitions. - In these rules, unless the context otherwise requires, -"

(a) "Contingency paid employee" means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to office contingencies excluding the employees who are employed for certain period only in a year,

(b) "Work charged employee" means a person employed upon the actual execution, as distinct form general supervision of a specified work or upon subordinate supervision of the department labour, Store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily paid labour and muster-roll employee employed on the work,"

Rule 2. (c) of the Rules, 1979 defines the word Permanent Employee'' which reads as under:-

"2 (c)Permanent employee'' means a contingency paid employee or a workcharged employee who has completed fifteen years of service or more on or after the 1st January, 1974,"

{Provided that in respect of a contingency paid employee or a work charged employee who has attained the age of superannuation on or after the First April 1981, permanent employee means an employee who has completed 10 years of service on or after the 1st January, 1974.}

The petitioners, working as gangmen, are workcharged employees, as the petitioners were employed upon the execution of work of the Public Works Department. The daily paid labours and muster roll employees on the work are excluded form the definition of the workcharged employees as prescribed in Rule 2 (h) of the Rules 1976. The permanent employees are contingency paid employees or workcharged employee who have completed 15 years of service or more on or after 01.01.1974 casual labour gangs and permanent gangs are provided in Public Works Department Manual (for short the P.W.D. Manual")- Para 4.003 of the said P.W.D. manual provides for registration and payment of daily casual labour regular labour gangs, as under :-

4.003. (A) Casual Labour Gangs. - When work is to be done by daily casual labour gangs, the subordinate incharge shall prepare a muster roll, which will show the names of the work-people, their attendance, the work done and the amount payable on this account. Monthly muster rolls if necessary, may be closed after seven days or as convenient.

(B) Permanent Gangs. -

(a) Attendance of permanent gangs shall be entered in an attendance register. Attendance will be recorded by Time Keeper daily in the morning. At headquarters, the attendance will be checked by Sub-Engineer at least twice a week outside headquarters. A cross mark (x) must be placed against each absent person so that no blank space is left.

(b) Acquaintance roll will be based on the number of days a labourer has actually worked plus authorised holidays and leaves.

(c) A register of work progress will be maintained in which following information be recorded in five columns :-

(i) instructions for work to be done.

(ii) Compliance of instructions.

(iii) Quantities of measurable work/details of measurable work.

(iv) Details of materials consumed.

(v) Wages payable.

(d) The Sub-Engineer will review the register of work progress twice a week at headquarter and at least once a week in case of out station works. The sub-Engineer/S.D.O. will ensure adequate progress.

(e) Any recruitment to regular gangs will be done only with the permission of S.E. Labourers more than 58 years of age shall not be employed/continued in regular gangs."

Casual labour gangs are muster role employees wherein the payment is made on weekly or monthly basis, the permanent gangs attendance is maintained in the attendance register recorded by the time keeper, daily in the morning. Reading para 4.003 of the P.W.D. Manual with rule 2(h) of the Rules, 1976, make it clear that the petitioners in the cases on hand are workcharged employees and as per Rule 2 (c) of the Rules,. 1979 if a workcharged employee has worked for more than 15 years of service or more on or after the 1st January, 1974, would become permanent employee. Admittedly, the petitioners have worked for more than 15 years, the same is not disputed by the respondents and as such they have become permanent employees of the State Government. Rule 6 of the Rules 1976 also provides for categorization of the ''workcharged'' and ''contingency paid'' employees, that the employees who have been in service for 15 years or more on 1st January, 1974 would be eligible for status of the ''permanent workcharged'' or contingency paid'' employees.

Pay Revision Rules, 1998 came into force on publication of the same in M.R Gazette (Extraordinary) dated 26-06-1998. The same was framed in exercise of its power under the proviso (2) Article 309 of the Constitution of India. It has not been defined anywhere as to whether the same is applicable who are permanent workcharged and contingency paid employees or other employees also who have been appointed on monthly basis form contingency fund.

In Govind (supra) after examining all the provisions it was held that the ''workcharged'' and contingency paid'' employees who have been in service for 15 years or more on 1st January, 1974 would be eligible for status of the permanent workcharged'' or ''contingency paid'' employees.

Rule 5 the Rules, 1998 provides for grant of benefit of revised pay scale to all those members who are workcharged and contingency paid employees. It is made clear in Rule 7 of the Rules. 1998 that the workcharged and contingency paid employees would be entitled to revised pay scale w.e.f. 01.01.1996. There are certain conditions and guidelines for disbursing of arrears. The circular dated 26.06.1998 also provides for grant of revised pay scale i.e. 01.01.1996 after making proper calculations.

On the basis of documents produced by the petitioners, it appears that the petitioners were appointed as contingency paid employees. No documents have been produced by the authorities to distinguish as to whether the petitioners would be entitled to revised pay scale after the period of three years or otherwise form the date of appointment as workcharged and contingency paid employees. While rejecting the representation of Bhagwan Das Manikpuri (petitioner in W.RNo. 3221 of 2006), the State Authorities have not examined the aspect of grant of pay revision.

Any circular granting revised pay scale i.e. subsequent date would be contrary to the provisions of the Rules, 1998, as the Rules, 1998 clearly provides for grant of revised pay scale i.e. 01.01.1996.

It is well settled principles of law that executive instructions/circulars cannot supplant the provisions of Rules, Acts, but supplement to fulfill the objective of the said rules, Acts, (see A. Lall (Smt.) vs. State of Chhattisgarh and Others, 2007 (1) BLJ 265).

Having regard to the facts situation of the case, the respondent authorities are directed to consider the individual cases of the petitioners for grant of benefit of fifth pay scale, as their order of appointment clearly provides that they were appointed as workcharged contingency paid employees, if they were continuing on 01.01.1996 and thereafter. The State authorities have not produced any document to indicate the difference between temporary and permanent contingency paid employees. Even otherwise, for want of sufficient materials it cannot be held that the petitioners are workcharged and contingency paid employees only on the basis of appointment orders, as initially they were appointed for a period of 89 days. The State Government shall consider appointing a committee to examine the individual cases of the petitioners on facts in the light of decision of this Court rendered in Govind (Supra) and if they are found that they are workchaged and contingency paid employees, they are entitled to revised pay scale in accordance with the Rules, 1998.

With the aforesaid observations and directions, the writ petitions stand disposed of.

A copy of this order be placed on the records of W.P. No. 3221, 3277, 3398, 3611, 6125, 6126, 6127, 6128, 6129, 6130, 6131, 6426, 6427 & 6428 of 2006 and W.R(S) Nos.2959, 2960, 2961 & 2975 of 2007.