Public Health Engineering Department vs Phool Singh & Ors

Prakash Shrivastava, J

[1] This appeal u/s.2(1) of Madhya Pradesh Uchha Nyayalaya (Khand Nyayapith Ko Appeal) Adhiniyam, 2005 has been preferred by the State authority aggrieved with the order of the learned Single Judge dated 9/8/2019 passed in WP No.6537/2018.

[2] The respondents had filed the writ petition before the learned Single Judge claiming benefit of the kramonnat/time bound promotion pay scale on completion of 10-20 years and 12-24 years of service on the ground that the respondents being employees of work charge contingency paid establishment were entitled to the benefit of kramonnath pay scale.

[3] Learned Single Judge placing reliance upon the earlier judgment in the matter of Tejulal Yadav Vs. State of MP & ors ILR(2009) MP 1326 and in the matter of K.L.Asre Vs. State of MP passed on 7/11/2005 in WP(s) No.1070/2003(s) has allowed the writ petition.

[4] Having heard the learned counsel for parties and on perusal of the record, it is noticed that the writ appeals involving the similar issue have already been dismissed by the co-ordinate bench. The co-ordinate bench by order dated 29/3/2016 passed in WA No.119/2016 and WA No.120/2016 has held as under:-

"The issue involved in these writ appeals is squarely covered by the decision in the case of Teju Lal Yadav vs. State of M. P. and others reported in ILR (2009) MP 1326 and K. L. Asre vs. State of M. P. vide order dated 07.11.2005 passed in W. P. No.1070/2003(S).

Learned counsel for the respondent has drawn our attention to the order dated 18.12.2014 passed in W. A. No.675/2014 and submitted that the writ appeal of the State has been dismissed. It has come to our knowledge that the SLP filed by the State has been dismissed by the Hon'ble Apex Court.

The order dated 18.12.2014 passed in W. A. No.675/2014 is relevant, which reads as under :-

Heard on the question of admission as well as on I.A. No.4351/2014, an application for condonation of delay.

By this intra-court appeal, the appellants are praying for setting aside of order dated 13.02.2014 passed in W.P. No.6341/2012(S) whereby learned Writ Court directed the appellants to extend the same benefit to the respondent, which has been extended to the similarly situated contingency paid employees in the case of K. L. Asre vs. State passed on 07.11.2005 in W. P. No.1070/2003(S) and Teju Lal Yadav vs. State of M. P. & others reported in ILR (2009) MP 1326.

Brief facts of the case are that the respondent was appointed as Waterman on 14.03.1989 and he is in the work charged and contingency paid establishment. A prayer was made before the learned Writ Court that in terms of various judgements of this Court, he is entitled for krammonati pay scale.

A reply was filed by the State stating that since the respondent is working in the work charged and contingency paid establishment, therefore, the scheme of krammonati, as contained in the circular dated 17.03.1999/19.04.1999 is not applicable to the respondent and, therefore, his case for grant of krammonati pay scale deserves to be rejected.

Learned Writ Court considering the law laid down by this Court in the case of K. L. Asre (supra) has held that the respondent is also entitled for the same benefit and directed the appellants to extend the same benefit to the respondent, which has been extended to the similarly situated contingency paid employees. Paras-6 to 13 of the judgement is relevant, which reads as under:-

"6. Apart from the above, it is seen that the petitioner is working in the Polytechnic College and is said to be a contingency paid employee. Under the M.P. Education Department (Technical Branch) Contingency Paid Employees Recruitment and Conditions of Service Rules, 1978, a contingency paid employee is defined under Rule 2(b) to mean 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" but it excludes such of the employees who are employed for certain periods only in the year. In the aforesaid Rules of 1978, the categorization of employees is done under Rule-6 and the employees are classified into two categories i.e. permanent and temporary. Under sub-rule 2 of Rule- 6, it is provided that on completion of 15 years of continuous service the contingency paid employees shall be eligible for attaining the status of permanent work charged or contingency paid employee. The similar provisions are made in the M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 wherein the permanent employee is defined under Rule 2(c) to mean a contingency paid employee or a work charged employee who has completed 15 years of service or more on or after 1st January 1974.

The complete reading of these Rules indicates that a contingency paid employee attaining the permanent status and a work charged employee attaining the permanent status are treated to be similar in all respects for the purpose of granting them pension and revision of pay scales under the MP Work Charged and Contingency Paid Employees Revision of Pay Rules, 1990 and under the M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979.

Considering the fact that under the statutory rules also the contingency paid and the work charged employees are considered to be forming a common class. There is no reason why the benefit of time bound promotion which is extended to the work charged employees and why the judgment rendered in case of K.L. Asre (supra) be not made applicable in the case of the present employee also who has attained the status of a permanent work charged or contingency paid employees and entitled to various benefits in the matter of revision of pay and pension in identical manner.

A perusal of the Policy as contained in Annexure P/3 further indicates that even though the policy speaks about granting krammonati under the scheme to employees in the regular establishment, but by Clause (13) and (14) of the Scheme, the Government has extended the benefit of Krammonati to vehicle drivers working in the work charged and contingency paid establishment. A perusal of Clauses (13) and (14) clearly indicates that the benefit of krammonati after completing 12 years and 24 years of service is made applicable to employees in the work charged and contingency paid establishment.

As far as work charged and contingency paid employees are concerned, their service conditions are governed by the same rules namely the Work Charged and Contingency Paid Employees Recruitment Rules, applicable to various departments and the work Charged and Contingency Paid Employees Pension Rules 1979 and the Work Charged and Contingency Paid Employees Revision of Pay Rules, 1990. For the purpose of recruitment, appointment, pay revision and grant of pensionary benefits, the work charged and contingency paid employees constitute a common class and their terms and conditions of employment are governed by identical set of rules. It is, therefore, clear that for the purpose of recruitment, appointment, grant of pension and revision of pay scales, work charged and contingency paid employees are treated similarly and a separate set of rules, different from the one applicable in the regular establishment, govern their terms and conditions of employment. The work charged and contingency paid employees constitute a common class and therefore, this class of employees are entitled to similar treatment in all respects, deviation being permissible on justifiable grounds and reasons. In the present case, the benefit of time bound promotion under the scheme- Annexure P/3 and P/ 4 is extended to vehicle drivers working in the work charged and contingency paid establishment, as per the policy itself.

The principles laid down in the case of Shri K.L. Asre (supra) has been made applicable to time keepers, working work charged and contingency paid establishment. If time keepers and drivers in the work charged and contingency paid establishment are entitled to promotion under the time bound scheme, there is no reason as to why the said benefit be not extended to other employees constituting the same class in the work charged and contingency paid establishment. The policy is made applicable to drivers of this establishment and the reason for not making the said policy applicable to other categories of the work charged and contingency paid establishment is not indicated in the return. No reason is given as to why a different policy is being adopted in the case of other employees in the work charged and contingency paid establishment and the benefit granted to drivers in the said establishment is not extended to other employees like the petitioner. Respondents being a "State" has to give similar benefit to employees similarly situated and forming a common class. They may be justified in granting some additional benefit to some of the employees in comparison to others, but the justification and reasons for such a classification has to meet the test of Article 14 of the Constitution and the decision has to be reasonable, fair and justified by cogent reasons and relevant considerations. Except for contending that the policy is not applicable to employees working in the work charged and contingency paid establishment, no justification is forthcoming from the respondents with regard to further classification amongst the employees working in the work charged and contingency paid establishment with regard to implementation of the Policy - Annexure P-3 and P-4. When the employees working in the work charged and contingency paid establishment constitute a common class, all benefits which are extended to one set of employees namely drivers as per the policy and the time keepers in the light of the judgment in the case of K.L. Asre (supra) has to be granted by the respondents to the present petitioners also. In the absence of proper justification for adopting a different policy and cogent reason given justifying the reasonableness in the classification and differentiation done fulfilling the requirement of Article 14 of the Constitution, discrimination cannot be permitted. Parity in employment is required to be maintained and therefore, keeping in view the circumstances and the action of the respondents in adopting a pick and choose method violative of Article 14 of the Constitution in the case of employees who form a homogeneous class, the action discriminatory in nature cannot be upheld by this Court.

Keeping in view the aforesaid, the respondents are directed to extend the benefit of promotion in accordance with the aforesaid scheme to the petitioner and after evaluating his case in accordance with the requirements of the said scheme, grant benefit to the petitioner. In case the petitioner is found entitled then necessary orders in this regard be passed within a period of three months.

13.The petition is accordingly allowed and disposed of."

In view of the aforesaid, the contention of the learned counsel for the appellants that respondent was appointed as daily wager on 14.03.1989 and was granted regular pay scale and regularized in the work charged and contingency paid establishment on 14.05.1996 and, thereafter, when the order was cancelled on 08.10.2008, he had challenged the same by filing W. P. No.4220/2010(S) and the learned Writ Court by order dated 23.04.2010 directed that the respondent was continued in the work charged and contingency paid establishment. Thus, the contention of the appellants that he being a daily wager is not entitled for krammonati pay scale because only regularized employees are entitled for krammonati pay scale, cannot be accepted.

As per averments made in the writ petition and reasoning recorded by the learned Writ Court, it is not in dispute that the respondent was granted regular pay scale in the work charged and contingency paid establishment on 14.05.1996 and the order of cancellation was quashed and learned Writ Court vide order dated 23.04.2010 passed in W. P. No.4220/2010(S) directed that he was continued in the work charged and contingency paid establishments, thus, he is entitled for benefit of grant of krammonati.

No case to interfere with the order passed by the learned Single Judge, as prayed is made out. I.A. No.4351/2014 is accordingly, dismissed and consequently, W. A. No.675/2014 is dismissed.

In view of the aforesaid, we dismiss I.A. No.1549/2016 and I.A. No.1552/2016 as well as the writ appeals."

[5] It is pointed out that SLP(Civil) No.19848-19849/2016 filed by the State has already been dismissed by the Hon. Supreme Court by order dated 18/11/2016. It has also been pointed out that in similar circumstances placing reliance upon the order passed in WA No.119/2016 the co-ordinate bench has also dismissed WA No.83/2017 vide order dated 20/2/2017 and has affirmed the similar judgment of the learned Single Judge which is under challenge in this writ appeal.

[6] Having regard to the aforesaid, we are of the opinion that the view which is taken by the learned Single Judge is in consonance with the earlier orders of the division bench in WA No.119/2016 (supra) and WA No.83/2017 (supra). Hence, we do not find any ground to interfere in the order of the learned Single Judge.

[7] The appeal is accordingly dismissed.