State of Madhya Pradesh & Anr. vs Prakash Rathore

Heard on the question of admission as well as on I.A.No.3646/2018, an application for condonation of delay.

For the reasons assigned in the application and the cause shown by the appellants, the delay of 282 days is hereby condoned.

I.A.No.3646/2018, stands disposed of.

Similar issue has been decided by this court on 10.08.2018 in Writ Appeal No.693/2018 (Executive Engineer, P.H.E. Maintenance Div.No.2,

Musakhedi V/s. Jivan Ram Patel & Others).

Order dated 10.8.2018 passed in W.A.No.693/2018 is relevant which reads as under :-

“Heard on I.A. No.2239/2018(W.A. No.693/2018), I.A.

No.3019/2018(W.A. No.805/2018), I.A. No.3389/2018(W.A.

No.903/2018, I.A. No.3392/2018(W.A. No.904/2018), I.A.

No.5107/2018(R.P. No.1109/2018) and I.A. No.3747/2018(W.A. No.1012/2018), an application for condonation of delay.

The application for condonation of delay has been filed on the ground that there was procedural delay in granting approval and referring the matter

to the State Government.

On due consideration of the aforesaid and for the reason assigned in the applications, we are of the view that cause shown by the appellant is

sufficient to condone the delay. Accordingly I.A. No.2239/2018(W.A. No.693/2018), I.A. No.3019/2018(W.A. No.805/2018), I.A. No.3389/2018

(W.A. No.903/2018, I.A. No.3392/2018(W.A. No.904/2018), I.A. No.5107/2018 (R.P. No.1109/2018) and I.A. No.3747/2018 (W.A. No.1012/2018),

is allowed. Delay in filing the appeal is hereby condoned.

Also heard on the question of admission.

This order shall govern the disposal of W.A. No.694/2018, R.P. No.924/2018, W.A. No.805/2018, W.A. No.861/2018, W.A. No.869/2018, W.A.

No.903/2018, W.A. No.904/2018, R.P. No.1109/2018 and W.A. No.981/2018. Since common question is involved in all the connected aforesaid

appeals, therefore, the same are being decided by passing a common order. For the sake of convenience, the facts are being borrowed from W.A.

No.693/2018.

The respondents/writ petitioners have filed the writ petition challenging the order dated 08-01-2016 passed by the Presiding Officer, Labour Court,

Indore on the ground that they were entered as daily wages in the year 2004 and an order was passed in the year 2004 conferring the permanent

status upon them and thus they are entitled for the benefit of pay scale of permanent employees. The labour Court has rejected their claim for granting

pay scale of conferral of permanent status.

The learned writ court considering the fact that similar issue has been decided by the Division Bench of this Court in the case of State of Madhya

Pradesh and Others Vs. Arvind Anantnarayan Shukla and Others(W.P. No.5034/2011, decided on 13/12/2011), allowed the writ petition by directing

the appellant to confer the benefit of pay scale to the respondents as they have been classified as permanent employees with effect from 13/08/2004.

The writ court also directed the appellant to confer the same benefit to the present respondents which has been granted in W.P. No.1538/2016. Order

dated 13/12/2011, passed in W.P. No.5034/2011 reads as under :-

12.2011

Shri Civil Suit Ujjainia, learned Panel Lawyer for the petitioner.

Shri Umesh Gajankush, learned counsel for the respondents.

Heard.

By this petition, the petitioner â€" employer has challenged the award dated 11/10/2010 passed by Labour Court Indore in Case No. 45/10/1.D.

Reference by which the Labour court has answered the reference made to it under Section 10 of Industrial Disputes Act (for short the Act) holding

that on being classified as a permanent employee vide order dt. 13/8/04 the respondents are entitled for the regular pay scale and other benefits.

On going through the impugned award, we find that admittedly the petitioner â€" employer had issued an order dated 13/8/2004 classifying the

respondents who were working since last 20 years as permanent employees. However, even after classifying them as a permanent Class IV

employees, they are not granted the pay scale of Class IV employees. In the circumstances, the respondents had raised an Industrial Dispute by

approaching the Deputy Labour Commissioner. The Deputy Labour Commissioner referred the dispute for adjudication to the Labour Court. The

Labour Court after recording the evidence led by the parties on appreciation of the same, held that the respondents on being classified by the petitioner

as permanent are entitled for the benefits of pay scale of permanent employees.

Having considered the submissions made by Learned counsel for the parties in our considered view there is no illegality in the view taken by the

Labour Court. On the other hand we find that the award passed by the Labour Court is in conformity with the view taken by the Division Bench of

this Court in W.P.No. 3869 of 2005 (s) State of M.P. And others Vs. Gulab Singh and others decided on 10/8/2011 in almost identical fact situation. In

the said case, the Division Bench after examining the various other orders passed in the cases of similarly placed employees held that on being

classified as permanent employees the benefits of salary and pay scale of permanent workman are payable. The petitioner having classified the

respondents as permanent cannot deprive the respondents from the benefit of pay scale available to them on being so classified.

In view of the aforesaid, we find no infirmity in the award passed by the Labour Court.

Accordingly, the petition fails and is hereby dismissed. Against the aforesaid order, SLP was preferred and the Hon'ble Supreme Court has dismissed

SLP ie., SLP No. 20025/2011 and other identical SLPs.

Keeping in view the aforesaid, this Court is of the considered opinion that in the light of the order passed by the Hon'ble Division Bench against which

the SLP preferred has also been dismissed by the Hon'ble Supreme Court, the impugned order dt. 8/1/2016 deserves to be quashed and is accordingly

hereby quashed. The petitioners, as they have been classified as permanent employees, the benefit of salary and pay of permanent workmen be

certainly payable to the petitioners. The respondents cannot deprive them of from the benefit of pay scale available to them on being so classified.

Resultantly, the Writ Petition stands allowed. Respondents are directed to confer benefit of pay scale from the date they have been classified as

permanent ie., w.e.f. 13/8/2004.â€​

The review petition filed against the aforesaid order has been dismissed by order dated 9/02/2018, passed in R.P. No.316/2017.

Learned counsel for the appellant has submitted that the similar controversy with regard to grant of regular pay scale and also about the

classification as permanent employees was considered by the Hon'ble Apex Court while dealing with the issue in the contempt of the State

Government filed by Ramnaresh Rawat. The Hon'ble Apex Court after considering the matter finally decided that mere rendering the services of 240

days by any daily wage employee can claim the eligibility of permanent classification until and unless he was not employed against the clear vacancy.

To support the aforesaid, he placed reliance on Para â€" 23 of the aforesaid judgment reported in Ram Naresh Rawat Vs. Ashwini Ray & Ors.

Reported in 2016(8) SCC 733 decided on 15/12/2016 and submitted that the respondents are employees and they are eligible for minimum of the pay

scale. Para 22, 23 and 24 are relevant which reads as under :-

From the aforesaid, it follows that though a 'permanent employee' has right to receive pay in the graded pay-scale, at the same time, he would be

getting only minimum of the said pay-scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the

pay-scale.

In view of the aforesaid, we do not find any substance in the contentions raised by the petitioners in these contempt petitions. We are conscious of

the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some

persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in

negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors.[9]).

These contempt petitions are, accordingly, dismissed.

His next submission is that if permanent status which has been granted to the respondents have been withdrawn by the State w.e.f. 23/07/2011

and in view of the law laid down by the Division Bench of Principal seat of Jabalpur in the case of Mansukhlal Saraf & ors. vs. Arun Kumar Tiwari

& Others (W.P. No.198/1999) decided on 6/08/2015 as they were not appointed against the vacant post and without following the due process of law,

therefore, they are not entitled for relief regarding payment of minimum pay scale from the date of classification as permanent labour and, therefore,

liberty be granted to verify whether they acquire permanent status or not and thereafter the State will grant minimum of the pay scale from the date of

their classification.

He has further drawn our attention to the order dated 18/04/2017, passed in Special Leave Petition(C) No.6697/2016(M.P. Nagar Nigam, Palika

Karamchari Sangh Vs. Mansukh Lal Saraf & Ors.). He has also drawn our attention to the order passed by the Gwalior Bench in R.P. No.264/2017

(State of M.P. Vs. Rajendra Kumar Jain) & other connected matters wherein, the question regarding entitlement to salary equivalent to the minimum

of the regular pay-scale was considered. He has also drawn our attention to Para -12 to 18 of the aforesaid writ petition and prayed that the impugned

order be set aside and the matter be remitted back to the learned writ court for deciding the matter on the basis of order passed by the Division Bench

of Principal seat at Jabalpur and law laid down in the case of Ramnaresh Rawat(supra) as well as the order passed by the Gwalior Bench in the case

of State of M.P. Vs. Rajendra Kumar Jain(supra).

In reply, Shri Karpe, learned counsel for the respondents has submitted that in view of the law laid down by the Apex Court in the case of Ram

Naresh Rawat Vs. Ashwini Ray & Ors.(Supra) the respondents are entitled to only minimum of the pay-scale from the date of classification as

permanent employees. He further submitted that in the case of State of M.P. Vs. Rajendra Kumar Jain(supra) similar issued has been decided and,

therefore, the contention of the appellant that only those persons whose appointment are made as per law or those who had given permanent status as

per policy framed by the State Government are only entitled for grant of minimum of the pay-scale, is incorrect and prays for dismissal of the appeal.

He has also drawn our attention to the decision of the Apex Court in the case of Sheo Narain Nagar V. State of U.P. & Ors. Reported in AIR

2018 SC 233 and Jai Singh & ors. Vs. Municipal Corporation of Delhi reported in (2010) 9 SCC 385 and submitted that the writ petition was filed

under Article 227 of the Constitution Of India. The scope in this writ appeal is very limited because the learned writ court exercised its supervisory

jurisdiction while passing the impugned order.

In the case of Sheo Narain Nagar(supra), the Hon'ble Supreme Court afte considering the judgment of Secretary, State of Karnataka & ors. v.

Umadevi (3) & ors. (2006) 4 SCC 1, came to the conclusion that appellants therein were employed basically in the Year 1993; they had rendered

service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there was no Rules in place

for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules

available at the relevant point of time, when their temporary status was conferred. The appellants were required to be appointed on regular basis as a

one-time measure, as laid down in paragraph 53 of Uma Devi(supra) and since the appellants had completed 10 years of service and temporary status

had been given by the respondents with retrospective effect in the year 2002 and directed the services of the appellants be regularised from the said

date and consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months and set aside the order of

termination passed by the respondents.

We have considered the submission of the learned counsel for the parties and perused the decision cited by the learned counsel for the parties.

The law on the subject is well settled in the case of Ram Naresh Rawat Vs. Ashwini Ray & Ors.(Supra). The respondents have been classified

as permanent employees on 13/08/2004 and, therefore, now at this stage, after a period of 14 years we cannot grant liberty to the appellant/State to

consider as to whether they have been classified as per policy framed by the State Government or whether they have been entitled for classification

as permanent employees under the Rules.

Considering the fact that the permanent status was conferred upon employees in the Year 2004, we set aside the impugned order in part and

directed the appellant to grant minimum regular pay-scale to them from the date of their classification as directed by the Hon'ble Supreme Court in

Para â€" 23 of Ram Naresh Rawat Vs. Ashwini Ray & Ors. (Supra).

In the result, the W.A. No.693/2018 and other connected writ appeals are allowed in part. Consequently, R.P. 924/2018 and R.P. No.1109/2018

stands dismissed accordingly.

A copy of the order be placed in other connected matters bearing W.A. No.694/2018, R.P. No.924/2018, W.A. No.805/2018, W.A. No.861/2018,

W.A. No.869/2018, W.A. No.903/2018, W.A. No.904/2018, R.P. No.1109/2018 and W.A. No.981/2018.â€​

In view of the above, the present writ appeal is also liable to be disposed of on the same terms because the order dated 10.08.2018, shall apply

'mutatis mutandis' in the present case also.