Mahesh Kumar Rathor vs State of Madhya Pradesh Ors.

Sujoy Paul, J.—The singular question requires consideration of this Court is whether on classification as permanent employee, the petitioner is entitled to get same pay scale which is granted to a permanent employee in the respondent department. The petitioner was admittedly classified as permanent employee in accordance with rule 2 of the M.P. Industrial Employment (Standing Orders) Rules 1963 (hereinafter called as "the Standing Orders") and, therefore, praying for grant of the said benefits.

This Court in Engineer-in-Chief, P.H.E.D. and Others Vs. Budha Rao Magarde and Others, held as under:-

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. State Road Transport Corporation Vs. Harish Jayanti Prasad Agarwal and Others, itself on conferral 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 Madhya Pradesh and Others Vs. Ram Prakash Sharma and Others, the observations 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 25.6.1987 (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 Clerk/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.

From the above decision it is clear that once an employee acquired the status of permanent employee he is required to be paid the salary/wages of the post and he cannot be continued on the wages on which he had initially been appointed or continued till he had become permanent.

The judgment in Magarde''s case (supra) was put to test till Supreme Court. Special Leave Petitions and review petitions filed by the State Government in Magarde''s case were dismissed.

Recently a Division Bench of this Court again considered this issue in a batch of writ appeals filed by the State Government, i.e., Writ Appeal No. 1266/2010 and other connected matters. The Division Bench opined as under:-

The aforesaid rules do not contain any express prohibition that an employee, who has been classified as permanent employee under the Rules would not be entitled to benefits of the post hold by him. No restriction contained under the contract of employment has been brought to our notice.

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 Madhya Pradesh and Others Vs. Ram Prakash Sharma and Others,

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 arc dismissed.

In the light of aforesaid, conclusion is inevitable that on classification as permanent employee, the petitioner is entitled to get the pay scale which is given to a permanent employee.

In the peculiar facts of this case where the petitioner is classified by the employer w.e.f. 1990 by Annexure P/6 dated 15.6.2005 and the petitioner has filed this petition belatedly in 2010, considering the aforesaid, I deem it proper to direct the respondents to grant the regular pay scale to the petitioner on notional basis from 1990 and accordingly fix him in the pay scale. The petitioner shall be entitled to get arrears of salary from three years from the date of filing of the present writ petition. The aforesaid exercise be done within four months, failing which it will carry interest @ 6% p.a. With the aforesaid, petition stands disposed of.

Certified copy as per rules.