Dilip Singh Patel and Others vs State of M.P. and Others

Hon''ble Shri Justice Sujoy Paul

This order shall also govern disposal of W.P. No. 5707/09 (s) as the issue involved in both the cases is identical and same. For the sake of convenience facts are taken from W.P. No. 5212/2009 (s).

The petitioners by invoking the jurisdiction of this Court under Article 226 of the Constitution of India has prayed for grant of revised pay scale w.e.f. 1.1.2006 i.e. on the basis of recommendation of 6th Pay Commission.

In nutshell, the case of the petitioners is that they are admittedly classified as permanent employee as per the statutory provisions of M.P. Standing Standard orders. The department granted them the benefit of 5th Pay Commission for the pay scale in their respective pay scales but declined them to pay the revised pay which took place for their respective posts w.e.f.1.1.2006. Thus, the only question which is required for adjudication is whether the petitioners are entitled for benefit pay scale of 6th Pay Commission w.e.f. 1.1.2006.

Respondents by filing reply in paragraph 2 stated as under:

That, merely perusing the order Annexure P/4 issued in pursuance to the directions issued by the Labour Court, the petitioners were granted the minimum wages of pay scale 2750-4400 & 3050-4590 with DA. The aforesaid order has been passed in pursuance to the directions issued by the Division Bench of this Hon''ble Court in the case of State of MP VS. Ram Prakash Sharma reported in 1989 JLJ-36 only the classification order has been issued and on the basis of classification the concerning person cannot be treated as a regular employee. The Standard Standing Order Act and Rules framed by the State Government and the matter is still pending under judicial scrutiny before the Division Bench of this Court. In such situation because as per the S.S.O. only the benefit provided under the S.S.O. will be applicable, the concerning person cannot be treated as a regular employee. The petitioners are claiming the benefit of regular pay scale under the provisions of revision of pay Rules, 2009. Under the aforesaid Rules, 2009 as per Rule-2 this benefit cannot be applicable to the person who is not a regular employee because the petitioners have only declared as a classified employee and the classification cannot be treated as a regular he is only receiving the benefit on the basis of dictum given by the Division Bench and the analogy of "equal Pay equal Pay". In such situation because he is not a regular employee, he is not entitled to the regular pay scale. A copy of Rules is annexed herewith and marked as Annexure R/1 and that is why previously vide order Annexure P/4, he was granted minimum pay along with DA to the pay scale 2750-4400.

The question involved in this matter no more res-integra, this Court in Engineer-in-Chief, P.H.E.D. and Others Vs. Budha Rao Magarde and Others, and others vs. Budha Rao Magarde and others held as under:-

The next contention of the learned Government Advocate is that clauses (i) and (vi) of SSO 2 merely confer a status without an corresponding obligation to pay them wages or salary in the regular pay scale of the posts. Learned Government Advocate has proceeded further to submit that by acquiring a status, a person gets apprised of the nature of the duties that he is required to discharge as employee engaged on daily wages can, without such status, be employed in different sections. It is difficult to comprehend that a person acquires permanent status only as a ''tag'' without attendant benefit of salary of the posts relating to the nature of the work carried out by such an employee. In the present case each of the employees has specifically referred to the work of the service rendered by him in connection with a post. To illustrate, in W.P No. 3510/2000 the claim of the employee was that he ws working as a Lab Assistant while in W.P No. 3056/2000 the claim was that the employee was working on the post of Sweeper. Thus, specific duties performed relating to specific posts were duly pleaded and not specifically denied. Such a status acquired by an employee does not give him any other advantage except the advantage of pay. In M.P..S. R.T.C. Vs. Harish (supra), itself on conferal of the deeming status of permanent employee, direction for payment of salary on the post was made which indicates that it goes without saying that when a person acquires a permanent status, he automatically becomes entitled to the salary of the said post. In State of M.P Vs. Ram Prakash (supra) the observation of the Division Bench which are relevant in this context read as extracted below:

For all the foregoing reasons, we have no hesitation to hold that our interference with the order or award passed by the Labour Court on 25.06.1987 (Annexure P/3) is not warranted, the claim of the respondent being legally as also constitutionally justified. However, we would like to make it clear that the holding of this Court, whether in Surendra Kumar Saxena or Brij Kishore Sharma (supra) would not, in terms, apply to respondent''s case for that reason. His entitlement would also be so determined (under the "Annexure" of 1963 Rules) in respect of his claim for being treated as permanent employee. Therefore, he would be entitled to be paid not only the minimum of salary in the pay scale applicable to Lower Division Clerks/Typist appointed on regular basis; he would rather be entitled to be paid salary in the pay scale applicable to them. In other words, he would also be entitled to increments envisaged under that pay scale because we have held that he is entitled to be endowed with the status of a "permanent employee" in terms of the statutory provisions aforesaid.

This judgment passed by this Court in Budha Rao Magarde and others was put to test before the Supreme Court. The Apex Court dismissed the appeal preferred by the State Government. The State Government preferred a review petition which was also dismissed by the Apex Court. Recently, a Division Bench of this Court in W.A. No. 1266/2010 and other connected matters again followed the ratio of Budha Rao Magarde and others (supra) and held as under : -

Whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought into service through either of the two processes permitted by law, as permanent employees against a particular post, should be entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of "equal pay for equal work". Our view finds support from another Division Bench decision of this Court report in the case of State of M.P. Vs. Ram Prakash (1989 JLJ 36).

For the aforementioned reasons, we do not find any good ground to interfere with the order passed by the learned Single Judge.

Accordingly, the writ appeals are dismissed."

In this view of the matter, this is clear that once petitioners are classified as permanent employee, they are entitled for the pay scale including the revised pay scales which are attached to their permanent posts.

Accordingly, this petition and the connected petition are allowed. The action of respondents in not paying the revised pay scale of 6th Pay Commission w.e.f. 1.1.2006 to the petitioners is impermissible in law.

Consequently, the respondents are directed to provide them the benefit of 6th Pay Commission w.e.f. 1.1.2006 with all consequential benefits within four months. If the same is not paid within four months it shall carry interest @ 6% per annum.

Both the petitions stand allowed and disposed of.