Madhya Pradesh High Court
Chandra Shekhar vs The State Of Madhya Pradesh on 26 August, 2021
Author: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Hon'ble Shri Justice Vishal Mishra.
Writ Petition No.4018 of 2020 (S).
Kamta Prasad
Versus
State of M.P. and others
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Shri Devesh Sharma, learned counsel for the petitioner.
Shri Bhanu Prakash Singh, learned counsel for the petitioners.
Shri B.M.Patel, learned counsel for the petitioners.
Shri Yash Sharma, learned counsel for the petitioners.
Shri Varun Kaushik, Learned GA for the respondents/State.
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JUDGMENT
(Pronounced on 26/08/2021)
1. With the consent of parties, the matter is finally heard through
video conferencing.
2. As common question is involved in all these Writ Petition
Nos.1580/2017(S), 5760/2017(S), 5761/2017(S), 1410/2018(S),
2604/2018(S), 2734/2018(S), 5353/2018(S), 7166/2018(S), 7470/2018(S),
9936/2018(S), 10331/2018(S), 11012/2018(S), 11091/2018(S),
11313/2018(S), 11316/2018(S), 11319/2018(S), 11321/2018(S),
11679/2018(S), 11681/2018(S), 11687/2018(S), 13790/2018(S),
19310/2018(S), 20057/2018(S), 20059/2018(S), 29785/2018(S),
1836/2019(S), 9853/2019(S), 10516/2019(S), 23152/2019(S),
25620/2019(S), 25933/2019(S), 26070/2019(S), 26072/2019(S),
26073/2019(S), 26075/2019(S), 27607/2019(S), 27608/2019(S),
27609/2019(S), 1958/2020(S), 3140/2020(S), 4017/2020(S), 4019/2020(S),
4898/2020(S), 5354/2020(S), 5357/2020(S), 5358/2020(S), 11963/2020(S),
12249/2020(S), 12298/2020(S), 12574/2020(S), 12861/2020(S),
13340/2020(S), 13572/2020(S), 13911/2020(S), 14024/2020(S),
14992/2020(S), 15004/2020(S), 15306/2020(S), 15645/2020(S),
15835/2020(S), 15837/2020(S), 15849/2020(S), 15859/2020(S),
17437/2020(S), 17472/2020(S), 17670/2020(S), 17675/2020(S),
17678/2020(S), 17683/2020(S), 17771/2020(S), 18560/2020(S),
19026/2020(S), 19980/2020(S), 20072/2020(S), 20096/2020(S),
20110/2020(S), 20112/2020(S), 20226/2020(S), 610/2021(S), 620/2021(S),
2220/2021(S), 2242/2021(S), 5831/2021(S), 6483/2021(S) & 7945/2018(S),
therefore, they are being taken up for analogous hearing along with
the present petition.
3. A table is being prepared to point out initial appointment of
the petitioners in service, their date of order of classification
mentioning from which date classification of the petitioners was
made effective, the litigation being taken up by the petitioners and
the date of respective orders.
4. For the sake of convenience, the facts as mentioned in
W.P.No.4018 of 2020 (Kamta Prasad Vs. State of M.P. and
Others) are taken into consideration.
5. The petition is filed being aggrieved by the order dated
23.5.2017 passed by the respondents whereby, the order of
classification of the petitioner dated 7.5.2003 has been declared to
be illegal and the petitioner has been reverted back from the post of
permanent classified employee to the post of `Sthai Karmi' Pump
Operator. It is pointed out that the impugned order is prima facie
illegal, arbitrary and in violation of the Standard Standing Orders,
which are framed under Section 21 of M.P. Industrial Employment
(Standing Orders) Act, 1961 (hereinafter would be referred as to
`SSO 1961', in which no such classification as a permanent daily
wage employee exists. Once an employee is classified as permanent,
he acquires the right of all benefits available to a permanent post as
this Hon'ble Court has held way back in the year 1989 in the case of
State of M.P.PHED V/s Ramprakash Sharma, (1989 JLJ 36).
6. It is alleged that there is no delay in filing of present petition
owing to the fact that the financial loss occurred to the petitioner on
day to day basis, is a recurring cause of action and in the light of law
laid down by the Hon'ble Supreme Court in the case of Inder Pal
Yadav Vs. Union of India & Others reported in 1985 (2) SCC
648 wherein it has been held that where there is a recurring loss of
monetary benefits and service benefits, delay cannot be a ground to
take away the legal rights accrued in favour of an employees.
7. As far as present case is concerned, the petitioner was initially
appointed as a daily rated employee to the post of Pump Operator in
the respondent department on 04/05/1995 and he was discharging
his duties with utmost honesty and sincerity. An order was issued
on 03.02.2003 by the Engineer-in-Chief bearing No. 1139, to the
Chief Engineer of all Zones of PHED for classification of daily
wage employees and in pursuance to the aforesaid order, subsequent
order No. 9603 dated 17/12/2003 was issued by the authorities
classifying the petitioner as well as other 150 employees. The order
was issued under the signatures of Executive Engineer on 7.5.2003
whereby, the petitioner and others were declared as classified
employees on the post of pump operator vide order dated 7.5.2003
after continuous and satisfactory working of 240 days. The
provisions of `SSO 1961' and Rules of 1963 are applicable to the
respondent department and the order of classification has been
issued in pursuance to the provisions of `SSO 1961" and Rules
1963 which are framed under Section 21 of the `SSO 1961'. A Full
Bench of this court in the case of Superintending Engineer Vs.
Dev Prakash Shrivas reported in 1999 (1) MPJR 1 has held that
the terms and conditions of the daily rated employees' services and
conditions are governed by Standard Standing Orders and the
services of the petitioner are also governed by the SSO, considering
the judgment passed by Division Bench of this court in the case of
State of M.P. Vs. Ramprakash (Supra). The present department
was not exempted by issuance of notification by the government in
accordance with Sub Section 2 of Section 2 of the Act of 1961 and
the Rules of 1963. Therefore, the SSO shall govern the department
and the service conditions shall be governed by the SSO. When no
benefit of classified employee was extended to the petitioner, he
knocked the doors of this court by filing W.P.No.2681/2015
(Kamta Prasad Singhal Vs. State of M.P. And others) for getting
regular pay scale and arrears of salary and other consequential
benefits from the date of classification. The writ petition was finally
heard and disposed of on 07/05/2015 with a direction to the
authorities that the judgment passed in the case of State of M.P.
Vs. Ram Prakash (Supra) is a judgment in rem and should be
made applicable to all the employees. Considering the same, the
petition was finally disposed of with the following directions :
(1) The petitioner shall file a fresh representation before
respondents along with the proof of acquiring permanent
status by way of classification. The respondents shall verify
and if petitioner's permanent status remains intact, he shall
be given similar treatment, i.e., grant of regular pay scale
attached to the permanent post from the date of
classification as permanent employee.
(2) The respondents shall also grant increments attached to
the pay scale and if rules permit, extend benefit of DA in
favour of the petitioner.
(3) The respondents shall also pass a speaking order
regarding claim of grant of seniority to the petitioner from
the date of classification as permanent employee.
(4) If for any justifiable reason, the petitioner is not found
entitled for any of the benefits claimed, a detailed and
reasoned order be passed and communicated to the
petitioner. The aforesaid exercise be completed within 120
days from the date of production of copy of this order along
with the representation.
(5) It is made clear that it will not be open to the
respondents to deny relief to the petitioners on the ground
that they were not litigants in W.A. No. 1266/2010 and
other similar matters, which were decided on merits, if they
are otherwise similarly situated. Petition is disposed of."
8. When the order passed in writ petition was not complied with,
the petitioner preferred a contempt petition being Contempt
Petition No.732 of 2016 (Kamta Prasad Vs. Pankaj Agarwal)
wherein, the compliance report has been filed by the authorities
pointing out the fact that the respondents have given the benefit of
policy to the petitioner introduced on 7.10.2016 issued by General
Administration Department as "DAINIK VETAN BHOGIYO KE
LIYE STHAYI KARMIYON KA VINIYOJAN KARNE KI YOJNA"
and it was held that the order of classification of the petitioner was
issued far back in the year 2003 by mistake and subsequently, it was
cancelled in the year 2011. It is submitted that the authorities have
never cancelled classification order of the petitioner and without
getting the classification of the petitioner cancelled, benefit of
policy dated 7.10.2016 could not be extended to the petitioner as the
policy is with respect to the settlement of daily rated employee and
the petitioner being a classified employee, cannot be termed as daily
rated employee any more. It is further pointed out that in similar
circumstances, the respondents have also extended the benefits to
Mr. Lakhan Prasad and Chandra Prakash Mody and many other
employees who were classified vide same order dated 7.5.2003.
9. It is argued by counsel for the petitioner that the aforesaid
question has been considered by this court on large number of
occasions even by the Hon'ble Supreme Court but despite of
repeated pronouncements the authorities are willfully and
deliberately not complying with the directives issued by the courts
and are passing the orders like the orders impugned herein, declaring
the classification order of the petitioner to be illegal and showing
that they have taken a lenient view in the matter in extending the
benefits of the policy issued by GAD on 7.10.2016 with respect to
settlement of daily rated employees, and they have categorized them
as `Sthayee Karmi' in three categories and accordingly has extended
them the benefit of the scheme. Counsel for the petitioner has drawn
attention of this court to the order passed by Division Bench of this
court of this in W.A.No.110 of 2011 (State of M.P Vs. Sultan
Singh Narveria), wherein, it was held that "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 based upon the law in the
form of standing orders and as such both employee 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 the classification process would
be saddled with an undesirable disability throughout their services,
as compared to other employees, which may tantamount to violation
of the principle of "equal pay for equal work"." This view of this
Hon'ble Court has been confirmed by the Hon'ble Supreme Court
by dismissing the S.L.P Civil 20025/2011 in the case of State of
M.P. Vs. Sultan Singh Narwaria, filed by the State Government
against this order vide dated 21/01/2015. The Hon'ble Court has
observed that "We direct the State Government to implement the
order passed by the High Court within eight month' time from
today. If for any reason, the Petitioner State does not implement the
orders (S) passed by the High Court, the respondents are at liberty to
approach this Court by way of filling contempt Petition (S)".
10. It is argued that the question with respect to declaring the
classification order of the petitioner to be illegal and issued by
mistake was considered by Division Bench of this Court at Indore in
W.A.No.693 of 2018 (Executive Engineer PHE Maintenance
Division No.2, Musakhedi Vs. Jiwan Ram Patel and Others)
wherein, bunch of appeals were decided by Division Bench on
10.8.2018 and the Division Bench considering the judgment passed
by Hon'ble Supreme Court in the case of Ram Naresh Rawat Vs.
Ashwini Rai and Others reported in 2016 (8) SCC 733 has held
as under :
"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 direct 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 23 of Ram Naresh Rawat Vs.
Ashwini Ray & Ors.(Supra) and the appeals were allowed in part
and the review petitions being R.P. 924/2018 and R.P.
No.1109/2018 heard analogously with the writ appeals were also
dismissed".
11. The aforesaid order passed in W.A.No.693 of 2018 dated
10.8.2018 was put to challenge by the State Govt. by filing SLP
before Hon'ble Supreme Court being SLP (Civil) Diary No.8126
of 2019 (Executive Engineer PHE Department Vs. Jivan Ram
Patel and others) which was finally dismissed by Hon'ble
Supreme Court and decided vide order dated 5.4.2019. After
dismissal of the SLP, the State authorities have implemented the
orders passed by this court and extended the benefit of minimum
of the pay scale without increments that in terms of the judgment
passed by Hon'ble Supreme Court in the case of Ram Naresh
Rawat (supra).
12. The petitioner has further brought to the notice of this court
an order passed by this court an order passed by the Division
Bench of this court at Gwalior in Contempt petition No.859 of
2016 in the case of Madan Lal Vs. Pankaj Agarwal wherein,
several contempt petitions were considered analogously and were
decided on 1.8.2017 considering the judgment rendered by
Hon'ble Supreme Court in the case of Ramnaresh Rawat (supra)
with respect to entitlement of the classified employees a direction
was given to the authorities to comply with the order and extend
the benefits of classified employees in terms of the order of their
classification and pay their salary at minimum of pay scale
admissible to the petitioner without any increments. It was further
observed that the order passed shall remain subject to the final
outcome of the case pending before Hon'ble Supreme Court in the
case of State of M.P. Vs. Ku. Arti Saxena being SLP
No.17998 of 2010. It is pointed out that the case of Ku.Arti
Saxena (Supra) has been finally disposed of vide order dated
26.9.2019 and vide order dated 4.9.2019, the SLP filed by the
State was dismissed.
13. He has further drawn attention of this court to the order
passed by Division Bench of this court in Contempt petition
No.1125 of 2016 (Sunil Joshi Vs. Pankaj Agarwal) decided vide
order dated 22.6.2018 wherein, the Division Bench has disposed
of the contempt petition in terms of the order passed by Hon'ble
Supreme Court in the case of Ramnaresh Rawat (Supra)
directing the respondents to consider the cases of petitioners in
the light of the judgment rendered by Division Bench of this court
in the case of Ramnaresh Rawat (supra) and extend the benefit
to them from the date of communication of the order. Thereafter,
the State Govt. had filed a Review Petition No.1308 of 2018
before the Division Bench of this court which was dismissed vide
order dated 31/08/2018. Thereafter, the state filed the S.L.P. No.
43195/2018 against the order of Division Bench in the Hon'ble
Supreme Court. The Hon'ble Supreme Court dismissed the SLP of
the state vide order dated 14/12/2018. In such circumstances, the
order passed by Division Bench of this court in the case of Sunil
Joshi (Supra) has attained finality.
14. Counsel for the petitioner has further drawn attention of this
court to the order passed by Division Bench of this Court Bench
at Indore in W.A.No.1139 of 2018 decided on 31.8.2018 wherein,
similar controversy was considered by the Division Bench of this
court and the writ appeal was disposed of in terms of the order
passed in W.A.No.693 of 2018 vide order dated 10.8.2018
wherein, the Division Bench has set-aside the action of the
authorities and has directed to extend the benefits of the classified
employees to the respondents. It is argued that the controversy has
already been put to rest by Division Bench of this court as well as
by Hon'ble Supreme Court, but despite of the same, the authorities
are not extending the benefits of classification and passing the
orders wherein, holding their classification order to be illegal and
not in accordance with the SSO and granting them the benefit of
the scheme introduced by GAD on 7.10.2016. The action of the
authorities amounts to deliberate and willful disobedience of the
orders passed by this court on various occasions. In view of the
aforesaid, the order impugned passed by the authorities declaring
the classification order of the petitioner to be illegal which was
issued far back in the year 2003 (as in the present case), he prayed
for quashing of the impugned order with the further direction to
the authorities to extend the benefit of the classified employees to
the petitioner from the date of his classification.
15. Per contra, counsel for the State by filing response to the
petition has denied the contentions and has argued that in the
earlier round of litigation in W.P.No.2681 of 2015 vide order
dated 7.5.215, the liberty was extended to the respondents to
verify the classification order of the petitioner and if it is found to
be intact, then extend the benefit otherwise, pass a self contained
speaking order and communicate the outcome to the petitioner. In
pursuance to the same, the authorities have examined
classification of the petitioner and has found that the classification
order issued on 7.5.2003 was issued by mistake as the petitioner
was not entitled to be a classified employee, therefore, the order
dated 7.5.2003 was cancelled on 20.7.2011. Even the order dated
20.7.2011 has not been put to challenge by the petitioner at any
point of time, therefore, the petitioner cannot claim that he has
been classified as a `permanent employee'. It is contended that in
the second round of litigation while considering claim of the
petitioner is for the reason, that the permanent employee has been
defined under Act of 1961 Rule 2(i) contained in chapter Il
classification of a "Permanent employee" has been defined to the
effect that a 'permanent' employee is one who has completed six
month in a clear vacancy available in the department regularly.
The aforesaid provision was not followed and admittedly, the
petitioner has not worked for six months on a clear vacant post,
therefore, his claim was rightly rejected. It is argued that there is
nothing in the petition to point out the fact that the petitioner has
ever worked for continuous period of six months and that too on a
clear vacant post and on that basis, classification order was issued.
He has relied upon the judgment passed Hon'ble Supreme Court in
the case of State MP vs. Lalit Kamar Verma reported in 2007
Vol. 1 page 575, wherein, the Hon'ble Supreme Court has
considered that the permanent status of the petitioner was not
found in accordance with law due to the reason that the initial
appointment of the petitioner was de hors the rules as he has not
worked for a continuous period of six months on a clear vacant
and sanctioned post. Considering the aforesaid judgment passed
by Hon'ble Supreme Court, the case of petitioner was examined
by the authorities and the order impugned has been passed. The
same does not call for any interference in the present case. The
petitioner could not establish the fact that he has been classified in
accordance with the SSO 1961 and the Rules of 1963, therefore,
the petitioner is not entitled to work on the classified post.
Thereafter, the scheme was introduced by the State Govt. for
VINIAMITIKARAN on 7.10.2016 and taking a lenient view, the
State Govt. has considered the case of petitioner in accordance
with the scheme and declared them to be a `Sthayi Karmi' and
accordingly had extended the benefit to them. Thus, there is no
illegality in the impugned order. He prayed for dismissal of the
writ petition.
16. By filing a rejoinder, counsel for the petitioner has
submitted that the classification order dated 7.5.2003 was
cancelled by the department vide order dated 15.7.2011 and
20.7.2011 which were put to challenge by Union Rajya Nirman
Vibhag Karmchari Sangh, Gwalior before this court by filing a
W.P.5023/2011 wherein, this court has set-aside the impugned
orders whereby, the classification of the petitioner was cancelled
by the authorities vide orders dated 15.11.2011 and 20.11.2011
and thereafter, the respondents have not cancelled the
classification order of the petitioner after 14.12.2011. The
petitioner being one of the member of the Union and therefore,
once the order has been challenged by Union and the order passed
by the State Govt. was quashed, the same will be applicable and
binding upon the respondents and will be applicable to all the
employees. It is further pointed out that the respondents had
classified many employees vide order dated 7.5.2003 and
extended the benefit of classification order despite cancellation
orders of some of the employees as in the cases of Lakhan Prasad
Sharma who has fought litigation before the court and finally in
the contempt Petition No.991 of 2019 and when the order dated
6.9.2019 was passed, the respondents have extended the benefit of
the classified employee to Lakhan Prasad Sharma. Similarly, the
petitioner has filed a Contempt Petition No.732 of 2016 before
this court which was listed before National Lok Adalat and was
disposed of vide order dated 9.9.2017 in the light of Contempt
Petition No.859 of 2016 Madan Lal Yadav Vs. Pankaj
Agarwal and Others. In the case of Madan Lal Yadav (Supra),
the Division Bench of this court in analogous hearing has held
that the controversy with respect to involvement of the classified
employee is settled by the Hon'ble Supreme Court in the case of
Ramnaresh Rawat (Supra) and has directed to make effective
compliance of the order by extending the benefit of minimum pay
scale without increment. It was further observed that the order
will be subject to final outcome of the SLP pending in the case of
Ku. Arti Saxena (Supra). It is contended that now the case of Ku.
Arti Saxena has already been decided by Hon'ble Supreme Court
and the SLP preferred by the State Govt. has been dismissed vide
order dated 26.9.2019. Thus, the stand taken by the respondent
authorities is per se illegal and contrary the settled legal position
of law.
17. By filing additional return, counsel for the respondents has
relied upon the judgment passed by coordinate Bench of this court
in W.P.No.14528 of 2019 Ajay Sharma Vs. State of M.P.,
decided on 6.8.2020 wherein, the similar question was raised by
the petitioner and the petition was dismissed being devoid of
merits. It is submitted that the same is the case of the petitioner.
In view of the liberty extended by this court in the case of
Kaluram Narwariya vs. State of MP & others in WP.No.
2000/2015 on 6.4.2015 the case of the petitioner was examined
and he was not found entitled for benefit of classified employee.
Accordingly, the petition sans merits and prays for dismissal of
the writ petition.
18. Heard the learned counsel for the parties.
19. In all these petitions, the petitioners have called in question
the legality, validity and propriety of the order annexure P/1
whereby, their permanent status pursuant to their classification has
been cancelled by the authorities. In all these petitions, it is not in
dispute that the petitioners were classified and granted permanent
status far back at least 15 years prior to the cancellation order. The
dates from which, they have been classified are mentioned in the
table which is as under:
Case No. Name of Date of Classifica Subsequent The date from which,
Sr.No petitioner. appointm Date of tion was cancellatio benefit of policy was
. ent & order of cancelled. n of given.
Departme classificat classificati
nt. (PHE) ion w.e.f. on, if any.
(91). 4018/20(S) Kamta Prasad. 04/05/95 07/05/03 23/05/17 - It has been extended to
all from 7.10.2016 or
from the different
dates.
(91.1) 1580/17 Ghanshym Singh 01/08/89 27.11.04, 2.2.2017 - -----
Jadon. 9.6.05, and
15.6.05 8.2.2017
Bhagwan Lal 4.11.88 and notices
Rawat. 30.7.05. for
cancellati
Surendra Pal. 7.7.91. on of
classificat
Gajendra Singh 30.8.89. ion.
Chauhan.
Kelash Prajapati. 1.5.90.
Rakesh Kumar 1.6.90.
Shrivastava
Raj Kumar 1.4.90.
Kushwah.
Raj Kumar. 1.8.90.
Shiv Singh. 1.6.90.
Ram Kishan 1.12.89.
Rathore.
1.8.89.
Rajesh Kumar
Sharma.
Poonam Kushwah 22.2.89.
Chhote Lal Jain. 1.5.90.
Gandharv Singh 1.7.81.
Narwariya.
91.2. 5760/17 Surendra Kumar 30/08/89 w.e.f 23.5.17. ----- ----
Rathore. 3.12.89
vide order
dated
15.6.05.
91.3 5761/17 Puttulal Rathore. 01/09/90 15.6.05 04/05/17 ----- ---
w.e.f
1.5.91.
91.4 1410/18 Laxman Singh. 10/08/92 27.11.04 22.5.17. ---- ---
w.e.f
7.4.93.
91.5 2604/18 Matadeen 01/01/88 27.11.04 15.3.17. ---- ----
Kushwah. w.e.f
28.8.88.
91.6. 2734/18 Prem Narayan. 01/07/94 27.11.04. 17.4.17. ---- ----
91.7 5353/18 Raj Kumar. 02/07/91 27.11.04. 26.5.17. ---- ----
w.e.f.27/2
/92
91.8 7166/18 Shriram Yadav 30/03/84 19.5.03. 27.12.17. ---- -----
91.9 7470/18 Garib Chandra 17/05/85 19.5.03. 05/05/17 ---- ------
Rai.
91.11 9936/18 Raja Ram 01/10/85 21.4.03. 13.6.17. ---- ----
Kusahwah.
91.12 10331/18 Bal Krishna 01/10/93 21.4.03. 20.4.17. ----- -----
Batham.
91.13 11012/18 Ghanshyam Singh 01/08/89 27.11.04 19.5.201 ----- -----
Jadon. w.e.f.29.3 7.
.90.
91.14 11091/18 Bishambhar 01/11/88 27.11.04 19.5.17. ------ ------
Singh. w.e.f.29.6
.89.
91.15 W.P.No. Munna Lal 4.12.198 21.4.03 27.4.17 It has been extended to
11313/201 Rathor 5 PHE him from 7.10.2016
91.16 W.P.No. Ramesh Prajapati 1.9.1987, 21.4.03 20.4.17 It has been extended
11316/201 PHE from 7.10.2016
91.17 W.P.No. Kalyan Singh 1.4.1985, 21.4.03 22.4.17 It has been extended to
11319/201 PHE with him from 7.10.2016
8 effect
from
14.5.07
91.18 W.P.No. Sarvan Kadere 28.7.198 21.4.03 02/06/17 It has been extended to
11321/201 6, PHE him from 7.10.2016
91.19 W.P.No. Jiwan Lal 5.8.1985, 21.4.03 20.4.17 It has been extended to
11679/201 PHE him from 7.10.2016
91.20 W.P.No. Lakhan Singh 6.9.1985, 21.4.03 13.6.17 It has been extended to
11681/201 Bais PHE, him from 7.10.16
91.21 W.P. No. Ram Naresh 1.9.1990, 17.12.03 08/02/17 It has been extended to
11687/201 Rathore PHE with him from 7.10.16
8 effect
from
15.6.05
91.23 W.P.No. Munna Lal 3.3.1986, 19.5.03 05/05/17, It has been extended to
13790/201 Kushwah and 8.2.1994, 6/5/2017, them from 7.10.16
8 others 8.1.1986, 6/5/2017
PHE
91.24 W.P.No. Neeraj Bhargava 1.1.1993, 21.4.03 02/06/17 It has been extended to
19310/201 PHE him from 7.10.2016
91.25 W.P.No. Smt. Kashmi Bai 1.5.1991, 21.4.03 20.4.17 It has been extended to
20057/18 Kushwaha PHE with her from 7.10.2016
effect
from
22.4.03
91.26 W.P.No. Gajan Lal 01/09/87, 21.4.03 02/06/17 It has been extended to
20059/201 Prajapati PHE with him from 7.10.2016
8 effect
from
14.5.07
91.27 W.P.No. Kashiram 1.4.1998, 19.5.03 05/05/17 It has been extended to
29785/201 Kushwaha PHE him from 7.10.2016
91.28 W.P.No. Balram Singh 1.1.1991, 27.11.04 19.5.17 It has been extended to
1836/2019 PHE him from 7.10.2016
91.29 W.P.No.98 Harprasad and 1.11.91, 27.11.04 22.5.17 It has been extended to
53/2019 others 1.2.85, all from 7.10.2016
1.6.88,
23.9.200
3 and
1.10.199
1, PHE
91.30 W.P. Rajjan Singh 01/02/91 27.11.04 19.5.17 It has been extended to
No.10516/ Sikarwar PHE all from 7.10.2016
91.31 23152/19 Rajeev Prakash 01.10.82 27.11.04 19/05/17 ---- It has been extended to
Shrivastava C.O. all from 7.10.2016
w.e.f.19.0
5.83
91.32 25620/19 Ramsuman 05/05/88 27.11.04 19/05/17 ----- ----
Katare C.O.
w.e.f.31/1
91.33 25933/19 Rajendra Singh 30/09/88 27.11.04 19/05/17 ---- -----
C.O.
w.e.f.28.0
5.89
91.34 26070/19 Deendayal 01/05/92 17.11.04 17.04.17 ----- ----
C.O.
w.e.f27/1
91.35 26072/19 Suresh Singh 01/09/86 27.11.04 29/07/17 ---- -----
Tomar C.O.
w.e.f.29/0
91.36 26073/19 Dhaniram 01/12/88 17.11.04 11/05/17 ----- ----
C.O.
w.e.f.28.0
7.89
91.37 26075/19 Kamal Kishore 21/07/92 27.11.04 22/05/17 ---- -----
Sharma C.O.
w.e.f.18/0
91.38 27607/19 Pradeep Kumar 01/01/85 27.11.04 19/05/17 ----- ----
Sirohi C.O.
w.e.f.28/0
91.39 27608/19 Rakesh Singh 01/03/87 14.01.05 11/05/17 ---- -----
Tomar C.O.
w.e.f.26.1
0.87
91.4 27609/19 Veerendra Saxena 15/07/89 21.04.03 02/06/17 ---- ----
0 C.O.
91.42 1958/20 Akhilesh Dwivedi 01/09/94 27.11.04 19/05/17 ----- -----
C.O.
w.e.f.
29/04/95
91.43 3140/20 Surendra Singh 19/02/90 30.07.05 23.05.17 ---- ----
Tomar C.O.
w.e.f.19.1
0.90
91.44 4017/20 Rakesh Sharma 25/04/86 07.05.03 06/05/17 ----- -----
C.O.
91.45 4019/20 Pradeep Rathore 01/10/89 07/05/03 23/05/17 ---- ----
C.O.
91.46 4898/20 (1) Bajnath 01.11.19 14.01.05 8.02.19 ....... It has been extended to
(2) Lotan Singh 87 (C.O) and all from 07.10.2016
Kushwaha 01.11.19 27.06.88 11.05.17
87/P.H.E. 27.06.88
91.47 5354/20 Ranveer Valmiki 01.10.19 27.11.04 31.07.17 -do-
91/PHE (C.O)
28.05.92
91.48 5357/20 Pappu Rajak 01.11.19 27.11.04 29.07.17 -do-
87/PHE (C.O)
Petitioner
has been
declared
as a
classified
permanen
t
employee
on the
post of
Pipe
Fitter vide
order
dated
27.11.200
4 w.e.f.
29.06.198
Petitioner
was again
classified
by the
responden
ts on the
post of
Pipe
Fitter vide
order
dated
05.04.200
8 wherein
the
petitioner
has again
classified
w.e.f.
26.06.199
91.49 5358/20 Radheshyam 02.05.19 27.11.04 06.02.18 -do-
Mahor 94/ PHE (C.O)
27.12.94
91.50 11963/20 Ajay Singh Goar 11.04.19 27.11.04 20.09.17 -do-
90/ PHE (C.O)
07.12.90
91.51 12249/20 Mukesh Sharma 22.10.19 27.11.04 22.05.17 -do-
94/PHE (C.O)
20.06.95
91.52 12298/20 Pramod Kumar 11.04.19 17.11.04 11.05.17 -do-
Rathore 90/PHE (C.O)
05.01.93
91.53 12574/20 Ramcharan 01.08.19 27.11.04 06.01.18 -do-
88/PHE (C.O)
28.03.89
91.54 12861/20 Saraswati Pal 15.09.19 27.11.04 19.05.17 -do-
(Legal Heir) of 92/PHE (C.O)
Late Shri 13.05.93
Harvilash Pal
91.55 13340/20 Sanjay Kataria 1.09.199 27.11.04 26.05.17 -do-
4/PHE (C.O)
27.02.95
91.56 13572/20 Sudama Prasad 20.08.19 22.04.03 20.04.17 -do-
Sharma 85/PHE (C.O)
91.57 13911/20 Lokam Singh 01.08.19 27.11.200 22.05.17 -do-
92/PHE 4
(C.O)
Petitioner
has been
declared
as
classified
permanen
t
employee
on the
post of
Chowkida
r vide
order
dated
27.11.200
4 w.e.f.
29.03.199
Thereafter
, the post
of
petitioner
was
amended
from
Chowkida
r to Pump
Driver
and the
petitioner
was again
classified
vide order
dated
05.04.200
8 w.e.f.
27.03.03.
91.58 14024/20 Raghuvir 01.06.19 07.05.03 10.10.18 -do-
Kushwaha 87/PHE (C.O)
91.59 14992/20 Ramesh Sharma 01/07/19 27.11.04 19.05.17 -do-
89/PHE (C.O)
26.2.1990
91.6 15004/20 Vishnu Kumar 04/12/00 27/10/04( 08/05/17 It has been extended to
0 Paliya C.O all from 07.10.2016
w.e.f.04/0
91.61 15306/20 Mahendra Kumar 01/06/88 21/04/03( 02/06/17 It has been extended to
Sharma C.O) all from 07.10.2016
91.62 15645/20 Kaluram 01/06/88 21/04/03( 02/06/17 It has been extended to
Narwariya C.O) all from 07.10.2016
91.63 15835/20 Rambeti 06/05/88 27/11/04 18/08/17 It has been extended to
Kushwaha (C.O) all from 07.10.2016
01/01/89
w.e.f.
(petitione
r's
husband)
91.64 15837/20 Babu Lal 06/03/86 07/05/03( 23/05/17 It has been extended to
Kushwaha C.O) all from 07.10.2016
91.65 15849/20 Kishan Batham 13/10/93 27/11/04( 22/05/17 It has been extended to
C.O.) all from 07.10.2016
w.e.f.
10/06/94
91.66 15859/20 Gaj Raj Singh 01/09/86 07/05/03( 06/05/17 It has been extended to
C.O) all from 07.10.2016
91.67 17437/20 Jugal Kishore 07/11/85 21/04/03( 20/04/17 It has been extended to
Kode C.O) all from 07.10.2016
91.68 17472/20 Santosh Kumar 01/01/91 27/11/04( 26/07/17 It has been extended to
Chaudhary C.O) all from 07.10.2016
91.69 17670/20 Jagdish 01/11/88 07/05/03( 13/06/17 It has been extended to
Kushwaha C.O) all from 07.10.2016
91.7 17675/20 Shahajad Khan 01/06/90 07/05/03( 13/04/17 It has been extended to
C.O) all from 07.10.2016
91.71 17678/20 Laxmi Narayan 01/02/88 07/05/03( 06/05/17 It has been extended to
Oda C.O) all from 07.10.2016
91.72 17683/20 Mangesh Tamwat 01/12/89 07/05/03( 23/05/17 It has been extended to
C.O) all from 07.10.2016
91.73 17771/20 Shyam Sunder 12/12/91 Petitioner has been classified vide order dated
Sharma 27.11.2004 w.e.f 08.08.92 on the post of
Chokidar and further the order has been
amended vide order 05.04.2008 granting the
post of Pump Driver w.e.f.06.08.02
91.74 18560/20 Vijay Kumar 09/05/89 21/04/03( 02/06/17 It has been extended to
Sharma C.O) all from 07.10.2016
91.75 WP.19026/ Rajesh Kumar 01/08/19 30.7.05 23.05.17 - It has been extended to
2020 (S) Sharma 89 PHE C.O. all from 07.10.2016.
w.e.f.
01.05.90
91.76 W.P.No.19 Bhagwanlal 04.11.19 27.11.04 19.05.17 - -''-
980/2020 Rawat 88 PHE C.O.
(S) w.e.f.
03/07/89
91.77 WP.20072/ Morari and 01.06.19 27.11.04 19.05.17 - -''-
2020 (S) Durgesh Kumar 87 & C.O.
01.05.19 w.e.f.
92 PHE 27.1.1988
&
30.12.92
91.78 W.P.20096 Rajaram 1.02.198 27.11.04 19.05.17 - -''-
/2020 (S) 6 PHE C.O.w.e.f.
29.9.1986
91.79 W.P.20110 Amar Singh 1.04.198 21.04.03 13.04.17 - -''-
/2020 (S) Gurjar 6 PHE
91.80 WP.20112/ Jitendra 9.5.1989 21.04.03 04/04/17 - -''-
. 2020 Shrivastava PHE
91.81 WP.20226/ Ramavatar 10.7.199 27.11.04 22.5.17 - -''-
2020 (S) 1 PHE C.O.
w.e.f.
06.03.92
91.82 WP.610/20 Manoj Kumar 01.08.19 21.04.03 19.07.18 - -''-
21 Yadav 89 PHE
91.83 WP.620/20 Smt. Pana Bai 1.1.1993 -''- 02/06/17 - -''-
21 (S) Batham PHE
91.84 WP.2220/2 Dinesh Sharma 1.1.1993 27.11.04 26.05.17 - -''-
021 (S) PHE C.O.
w.e.f.
29.8.93
91.85 WP.2242/2 Anil Sharma 1.1.1990 27.11.04 26.05.17 - -''-
021 (S) PHE C.O. w.ef.
29.08.90
91.86 WP.5831/2 Pramod Agrawal 1.11.199 27.11.04 28.05.18 - -''-
021 1 ( vdq'ky C.O. w.ef.
Jfed 28.6.1992
gsYij)
1.1.2007
ls iEi
MzkbZoj
ih,pbZ
91.87 WP.6483/2 Chandra Shekhar 17.7.199 17.11.04 17.04.17 - -''-
021 (S) 5 PHE C.O.
w.e.f.13.3
.1996
79 WP.7945/2 Maharaj Singh 11.4.199 17.11.04 17.04.17 - -''-
018 1 PHE C.O. w.e.f
07.11.91
20. The basic question which is cropped up for consideration
before this court is that the permanent status of the employees is
withdrawn/cancelled or taken away by the authorities can sustain the
judicial scrutiny.
21. The law with respect to entitlement of the classified
employees is settled by Hon'ble Supreme Court in the case of Ram
Naresh Rawat (Supra). All the petitioners who have filed these
petitions were engaged as daily rated employees and after working
for considerable period, they have been granted permanent status of
the permanent employee by way of classification by passing various
orders. The challenge was made by the petitioners regarding their
entitlement as a classified employees as they were working on the
same platform as that of regular employees therefore, the claim was
made that they may be fixed in regular pay and grant them the salary
of regular employees. Aforesaid question regarding entitlement of
the classified employee has been settled by Hon'ble Supreme Court
in the case of Ram Naresh Rawat (Supra), wherein it has been
held as under :
"4........ The precise submission is that once they are conferred
the status of permanent employee by the court and it is also
categorically held that they are entitled to regular pay attached to
the said post, not only the pay should be fixed in the regular
payscale, the petitioners would also be entitled to the increments
and other emoluments attached to the said post.
18. Insofar as petitioners before us are concerned they have been
classified as 'permanent'. For this reason, we advert to the core
issue, which would determine the fate of these cases, viz.,
whether these employees can be treated as 'regular' employees in
view of the aforesaid classification? In other words, with their
classification as 'permanent', do they stand regularized in
service?
26. From the aforesaid, it follows that though a 'permanent
employee' has right to receive pay in the graded pay- cale, at the
same time, he would be getting only minimum of the said pay-
scale with no increments. It is only the regularization in service
which would entail grant of increments etc. in the pay scale.
27. 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 ).
28. These contempt petitions are, accordingly, dismissed.
22. It is not disputed that all the petitioners have worked in the
department for considerable period of more than ten years and some
even for more than 15 year and they have attained permanent status
in the department. The Constitution Bench of the Supreme Court in
the case of Secretary, State Of Karnataka and Others Vs.
Umadevi And Others reported in 2006 (4) SCC 1 has considered
the question of regularization of a government servant or a daily
rated employee based upon the fact that he had rendered long
service and the Constitution Bench has held that "Needless to
mention that the main proposition canvassed in the instant judgment
pertains to regularization of a government servant having rendered
long years of service on temporary, contractual, casual, daily rated or
ad-hoc basis". It is however, relevant to mention that the
Constitutional Bench did examine the question of wages which such
employees were entitled to draw. As they have rendered services for
ten years, they claimed permanent employment in their cadre
including the wages (equal to the salary and allowances of regular
employees) with effect from the dates from which, they were
engaged on regular basis even though the administrative Tribunal
has rejected their claim by returning a finding that they have not
made a case for payment of wages equal to those engaged on regular
basis. The High Court has held that they were entitled to the salary
equal to permanent employees of their cadre from the date from
which, they were appointed. The direction of High Court is resulted
to higher pay for a period of 10 or more years". Passing of the above
direction, the High Court has relied upon the judgment rendered by
Three Judges Bench of this Court in Dharwad District PWD
Literate Daily Wage Employees Association and Others Vs.
State of Karnataka and Others, reported in (1990) 2 SCC 396,
the Constitutional Bench has noted as under :
"In cases relating to service in the commercial taxes department,
the High Court has directed that those engaged on daily wages,
be paid wages equal to the salary and allowances that are being
paid to the regular employees of their cadre in government
service, with effect from the dates from which they were
respectively appointed. The objection taken was to the direction
for payment from the dates of engagement. We find that the High
Court had clearly gone wrong in directing that these employees
be paid salary equal to the salary and allowances that are being
paid to the regular employees of their cadre in government
service, with effect from the dates from which they were
respectively engaged or appointed. It was not open to the High
Court to impose such an obligation on the State when the very
question before the High Court in the case was whether these
employees were entitled to have equal pay for equal work so
called and were entitled to any other benefit. They had also been
engaged in the teeth of directions not to do so. We are, therefore,
of the view that, at best, the Division Bench of the High Court
should have directed that wages equal to the salary that are being
paid to regular employees be paid to these daily wage employees
with effect from the date of its judgment. Hence, that part of the
direction of the Division Bench is modified and it is directed that
these daily wage earners be paid wages equal to the salary at the
lowest grade of employees of their cadre in the Commercial
Taxes Department in government service, from the date of the
judgment of the Division Bench of the High Court. Since, they
are only daily wage earners, there would be no question of other
allowances being paid to them. In view of our conclusion, that
Courts are not expected to issue directions for making such
persons permanent in service, we set aside that part of the
direction of the High Court directing the Government to consider
their cases for regularization. We also notice that the High Court
has not adverted to the aspect as to whether it was regularization
or it was giving permanency that was being directed by the High
Court. In such a situation, the direction in that regard will stand
deleted and the appeals filed by the State would stand allowed to
that extent. If sanctioned posts are vacant (they are said to be
vacant) the State will take immediate steps for filling those posts
by a regular process of selection. But when regular recruitment is
undertaken, the respondents in C.A. No. 3595-3612 and those in
the Commercial Taxes Department similarly situated, will be
allowed to compete, waiving the age restriction imposed for the
recruitment and giving some weightage for their having been
engaged for work in the Department for a significant period of
time. That would be the extent of the exercise of power by this
Court under Article 142 of the Constitution to do justice to
them".
23. Thus, it was made clear that the Constitution Bench has
further considered the question of illegal and irregular appointment
and has held that the irregular appointment can be corrected and
illegal appointments cannot be. It is not a case of petitioners that
their initial appointment was illegal rather the question was whether
after their appointments as daily rated employee in the department,
they were entitled to be classified as permanent employee as they
were granted the permanent status. Almost in all the cases, initial
classification order of the petitioners was issued in the year 2003-04
and they were classified as permanent employees. Subsequently, in
the year 2011, the order was passed by the authorities whereby, the
petitioners were reverted from the classified permanent post to the
post of daily rated employees (respective post) and thus, cancelled
the permanent status of the employees on the ground that by
mistake, they have been granted permanent status whereas, they
were not entitled to. Aforesaid order was put to challenge before this
court in various writ petitions one being W.P.No.5023 of 2011 in the
name of RAJYA NIRMAN VIBHAG KARMCHARI SANGH
GWALIOR M.P., Vs. STATE OF M.P, which was finally heard
and decided analogously along with W.P. No.6037 of 2011 (Vijay
Kumar Jain Vs. State of M.P.) and decided on 14.12.2011 whereby,
this court has held as under :
"Apart from this, the impugned order dated 8.8.2011 (Annexure
p/1) shows that petitioner's status of permanent employee is
withdrawn on the singular reason that his classification as
permanent employee was not against a vacant post.
This issue was dealt with by a `Division Bench of this
Court in Writ petition No.4361 of 2007 (s) (Water Resources
Department and others Vs. Vinod Kumar Shrivastata), the
Division Bench opined as under :
"Thus, as per the definition, an employee can be
classified as a permanent employee even though
he was not appointed against a vacant post. The
words `vacant post' is nowhere provided clause 2
(vi) and therefore, the employee can be classified
as a permanent employee even in absence of
`vacant post' as provided under clause 2 (vi) of
the M.P. Industrial Employment (Standing
Orders) Rules 1960".
This judgment of Division Bench was tested by the
department before the Supreme Court. The Apex Court dismissed
the SLP (C0 No.9347 of 2010 on 9.7.2010. For this reason also,
impugned order cannot be permitted to stand.
In the result, impugned order to the extent it deals with
petitioner is quashed and set-aside. Needless to mention that
liberty is reserved to the respondents to proceed afresh, if
permissible in law, after following the principles of natural
justice.
With the aforesaid, petition stands disposed of".
24. The order passed in the writ petition was put to challenge
before Division Bench of this court by Vijay Kumar Jain
(petitioner) and the writ appeal was finally heard and decided on
15th January, 2012, whereby, the Division Bench has upheld the
order passed by learned Single Judge. A review petition was
preferred by the State Govt. being R.P.No.179 of 2012
challenging the order passed in writ appeal which was dismissed
by the court holding that "in view of the matter, we do not find
any merits in this Review Petition. It was further observed that "it
is informed by the learned Govt. Advocate that similar matters
are pending before the Hon'ble Supreme Court for adjudication.
Copies of the orders passed by the Hon'ble Supreme Court in
S.L.P.Nos.8473/2012, 3256/2012, 1799/2010, 17875/2011 and
13278/2011 have also been filed by the State along with Review
Petition. Hence, execution of the order of Division Bench would
be subject to the order that may be passed by the Hon'ble Supreme
Court in similar cases.
25. The Review Petition is disposed of accordingly".
26. It is pertinent to mention here that all the SLPs which were
stated to be pending before the Hon'ble Supreme Court were
dismissed by various orders and last vide order dated 26 th
September, 2019 passed in S.L.P.No.17998 of 2010 (State of M.P.
Vs. Ku. Aarti Saxena) which has been dismissed by the Hon'ble
Supreme Court. Thus, the order passed by the court in the case of
Vijay Kumar Jain, has attained finality.
27. In the case of State of M.P. Vs. Sultan Singh Narveria
(Supra) the similar issue was considered by Hon'ble Supreme Court
and bunch of SLPs were considered and decided by three Judges
Bench of Hon'ble Supreme Court wherein, the SLPs filed by the
State Govt. were dismissed and the State authorities were granted
eight months time to comply with the orders and it was observed that
if for any reason, the State authorities does not implement the order
passed by the Court, the respondents would be at liberty to approach
by filing contempt petition.
28. Division Bench of this court in the case of Water Resources
Department Vs. Vinod Kumar Shrivastava, in W.P.no.4361 of
2007 decided on 14.7.2009 has considered the aspect and has held as
under :
"In the present case, the respondent-employee is not claiming
benefit of clause 2 (i) but is claiming benefit of clause 2 (vi) of
the M.P. Industrial Employment (Standing Orders) Rules, 1963
which provides that an employee who is engaged for a work
which is essentially of a temporary character and has been
working for more than six months continuously, shall be deemed
to be a permanent employee.
Thus, as per the definition, an employee can be classified
as a permanent employee even though he was not appointed
against a vacant post. The words `vacant post' is nowhere
provided under clause 2(vi) and, therefore, the employee can be
classified as a permanent employee even in absence of `vacant
post' as provided under clause 2 (vi) of the M.P. Industrial
employment (Standing Orders) Rules, 1963.
In such circumstances, the industrial court has not
committed any error in classifying the respondent-employee as
Gauge Reader from 7.11.1990 i.e. after 11 years of service.
Hence, no interference in this petition is called for. Accordingly,
petition stands dismissed".
29. The aforesaid order was put to challenge by the department
before Hon'ble Supreme Court in SLP (Civil) CC No.9347 of 2010
which was dismissed on the ground of delay on 9.7.2010 and
thereafter, the authorities have implemented the order passed by the
court.
30. Again, Division Bench of this court in W.A.No.150 of 2019
(State of M.P. And Others Vs. Ashwani Kumar Shrivastava)
vide order dated 5th September, 2019 has held as under :
"6. In identical situation, a co-ordinate Bench of this Court at
Indore, has disposed of a bunch of writ appeals and review
petitions;allowing the writ appeals in part, vide order dated
10/8/18 passed in W.A .No.693/2018 and connected matters.
The relevant portion thereof reads thus:-
"17. 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.
18. 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
payscale to them from the date of their classification as directed
by the Hon'ble Supreme Court in Para-23 of Ram Naresh
Rawat Vs. Ashwini Ray & Ors.(Supra).
19. 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 "
(Emphasis supplied)
31. The Division Bench of this court Bench at Indore has
considered the similar issue in bunch of writ appeals and in
W.A.No.693 of 2018 whereby, the bunch of writ appeals filed by the
State Govt. was dismissed by common order in analogous hearing
on 10.8.2018 and it was observed that :
"17. 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.
18. 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
-23 of Ram Naresh Rawat Vs. Ashwini Ray & Ors.(Supra).
19. 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".
32. The aforesaid order passed by the Division Bench of this court
in the case of Jivan Ram Patel was put to challenge before the
Hon'ble Supreme Court by filing SLP (Civil) ... Diary No.(s) 8126
of 2019 which was also dismissed vide order dated 5.4.2019.
33. This court in Writ Petition No.6021 of 2018 (Robin
Thomas Vs. State of M.P. And Others) has allowed the writ
petition on 23.9.2019 considering the judgment of Hon'ble Supreme
Court and also the liberty granted in the case of Kaluram
Narwariya Vs. State of M.P. (Supra) and has considered the
meaning of the word `intact' and it is held that the liberty which was
extended to the respondent authorities was to verify whether the
classification order of the petitioners and their permanent status
remains intact and if so, the benefit of classified employee be
extended to them and subsequent directions were required to be
followed thereafter and the court has allowed the writ petition.
Thereafter the authorities have granted the benefit of classified
employees to the petitioners.
34. Recently, in Contempt Petition No.2693 of 2019 (Pushpa
and Others Vs. Sanjay Shukla and Others) which was filed before
the Bench at Indore was decided vide order dated 1.7.2021, wherein
the court had held Principal Secretary of the Department guilty of
non compliance of the order and has observed as under :
"It would not be out of place to mention about the PHE
Department of the State, especially the Indore Division which is in
habit of generating unnecessary litigation before this Court either
by withdrawing the permanent status of the employees or reducing
the pay-scale mainly of Class-IV employees after 10 to 20 years
and they are compelled to approach this Court by way of number
of writ petitions. In number of cases the benefits already given to
the Class-IV employees has been withdrawn by Indore Division of
the PHE Department which has resulted in filing of number of
writ petitions, which is nothing but shear wastage of valuable time
of this Court and revenue loss to the State Government. The
orders passed by this Court are not being complied by them and
because of which the poor Class-IV employees are facing
hardship during this tough time. In the considered opinion of this
Court, this is a fit case in which the respondents are liable to be
punished for the non-compliance of the orders of this Court. In the
present case, since 2018 the petitioners who are poor Class-IV
employees are not getting the benefit of minimum of the pay-scale
which had already been conferred in the case of Ram Naresh
Rawat (supra).
In view of the above, notices are issued to all the respondents as to
why they be not punished for committing contempt of this Court.
The notices are treated to be served through their advocate
engaged in this case. The respondents shall remain personally
present before this Court on 26.07.2021 physically or through
Video Conferencing as per SOP.
List the matter on 26.07.2021 for hearing on the point of
punishment for committing contempt of this Court by the
respondents".
35. From the aforesaid analysis of various orders passed by this
court and the litigation which is filed by the petitioners it is
apparently clear that the classification orders could not have been
cancelled after a lapse of considerable period.
36. It is seen that the State Govt. just to avoid it's responsibility of
granting benefit of classification and permanent status to the
employees, are passing such orders repeatedly. Aforesaid tactics
have been adopted by the respondent authorities just to delay the
proceedings for making payment of classified employees. It is
pointed out by counsel for the petitioners that the employees who are
approaching the court time and again by filing writ petitions and
thereafter contempt petitions, the department extends the benefit of
permanent employee to them. In such circumstances, it is hostile
discrimination being done by the State Govt. who is a model
employer. The steps taken by the State authorities in not complying
with the order and subsequently passing order pertaining to
cancellation of classification of the employees is giving rise to
unnecessary litigation before this court. The issue has already been
put to rest by the Hon'ble Supreme Court in the case of Ram Naresh
Rawat (Supra). As far as cancellation of classification orders of the
employees are concerned, the issue has also been considered by the
Division Bench of this court in various judgments pointing out the
fact that even if the classification is not stated to be in accordance
with the provisions then also, the same cannot be cancelled after the
employee has worked on the post as classified employee for a
considerable period of ten or fifteen years.
37. As far as with respect to implementation of the policy dated
7.10.2016 to the classified employees is concerned, it is pointed out
by the State Govt. that in several cases, the employees themselves
have approached the court for extending benefit of policy which has
been introduced by the State Govt, looking to the fact that it is more
beneficial, in such circumstances, this court deems it appropriate to
direct not to disturb extension of benefit of policy to the employees
who have opted for it. But the policy is held to be not applicable to
the classified employees. It is a policy for the benefit of daily rated
employee. Therefore, this court holds that those petitioners who
have been extended the benefit of policy are entitled for difference
of arrears of salary as per their entitlement of classified employees
till the date when the State Govt. has extended the benefit of policy
to them.
38. The Hon'ble Supreme Court in the case of State of UP Vs.
Arvind Kumar Shrivastava, reported in (2015) 1 SCC 347 in
para 13 has held as under :
"The service jurisprudence evolved by this Court from time to
time postulates that all similarly situated persons should be
treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not approach
the Court earlier, they are not to be treated differently. The State
Government being model employer a welfare State should
extend benefit to all similarly situated persons. We are not
oblivious to the fact that sizable number of poor employees who
are in the lower acholone of the state government service are
required to knock the doors of the court for seeking similar
relief. This kind of litigation can be avoided if the government
extends benefits to all similarly situated persons".
39. Once the SLPs are dismissed and the legal position has
attained finality, in all fairness, the respondents should extend the
benefit of said principle to all similarly situated employees. In Inder
Pal Yadav And Ors. Etc vs Union Of India And Ors (1985) 2
SCC 648, the Hon'ble Supreme Court has observed that "those who
could not come to the court need not be at a comparative
disadvantage to those who rushed in here. If they are otherwise
similarly situated, they are entitled to similar treatment if not by
anyone else at the hands of this Court".
40. In view of the aforesaid facts and circumstances of the case
and the fact that in all the petitions, status of classified employee has
been extended to the petitioners far back almost a decade back and
they have continued in service, in some cases, the classification
order is cancelled and in some cases, their initial appointments are
declared to be illegal. The respondent authorities are passing such
orders in view of the liberty extended to them to see whether their
classification orders are still intact or not but no liberty was extended
to the state authorities to verify that the initial appointment was good
or bad, they were only required to ascertain whether the
classification order is in existence or not.
41. The Division Bench at Indore has considered the aforesaid
aspect and has quashed the order of cancellation of classification
order passed by respondent authorities. The aforesaid order is
affirmed up to the Supreme Court. In such circumstances, as it has
already been considered and observed by this court on several
occasions as well as by the Hon. Supreme Court that it is a judgment
in rem and should be made applicable to all the employees who are
similarly situated. It is seen from the record that the government is
extending the benefits of classified employees in terms of the
direction given by this court only to those employees who have
knocked the door of this court. The benefits are not being extended
in compliance of the order passed by this court, rather the employees
are forced to file contempt proceedings before the court. Some of the
employees have even fought litigation twice or thrice before the
court to get the benefit of classified employees. The aforesaid
litigation could have been avoided if the State being a model
employer acts for the welfare of the employees. Unnecessary
litigation could have been avoided if the State Govt. evolves a
scheme for extending benefit to all the classified employees.
Initially, the State Govt. had taken a stand that due to shortage of
funds and looking to the number of classified employees who are in
huge number, heavy burden will cast upon the state exchequer. It
appears that just to avoid burden, on the State Govt., the respondent
authorities are passing such orders forcing the poor employees to
knock the doors of this court again and again. The State Govt. could
have evolved a scheme for extending the benefits of classification
to classified employees in terms of the judgment passed by Hon'ble
Supreme Court in the case of Ram Naresh Rawat (Supra) as heavy
burden will be cast on the State Government. This aspect was
considered by the Hon'ble Supreme Court in the case of Dharwad
PWD Employees Association (Supra) and has held as under :
"We are alive to the position that the scheme which we have
finalised is 'not the ideal one but as we have already stated, it is
the obligation of the Court to individualise justice to suit a given
situation in a set of facts that are placed before it. Under the
scheme of the Constitution the purse remains in the hands of the
Executive. The Legislature of the State controls the Consolidated
Fund out of which the expenditure to be in- curred in giving
effect to the scheme will have to be met. The flow into the
Consolidated Fund depends upon the policy of taxation
depending perhaps on the capacity of the payer. Therefore,
unduly burdening the State for implementing the constitutional
obligation forthwith would create problems which the State may
not be able to stand. We have, there- fore, made our directions
with judicious. restraint with the hope and trust that both parties
would appreciate and under- stand the situation. The
instrumentality of the State must realize that it is charged with a
big trust. The money that flows into the Consolidated Fund and
constitutes the re- sources of the State comes from the people
and the welfare expenditure that is meted out goes from the same
Fund back to the people. May be that in every situation the same
tax- payer is not the beneficiary. That is an incident of taxa- tion
and a necessary concomitant of living within a welfare society".
42. For the reasons, the orders impugned cancelling the
classification orders are hereby quashed.
43. As in large number of cases, the benefit of classified
employee is extended to the similarly placed employees and the
State Govt. is adopting pick and choose method and are extending
the benefit of the policy to those who are approaching this court in
contempt proceedings and burdening this court by unnecessary
litigation despite of observations being made by this court on various
occasions, this court deems it appropriate to impose cost of
Rs.10,000/- (Ten thousand), (for each of the petitioners) on the
State Government which is to be paid in addition to the benefit of
classification. Aforesaid cost be deposited within one month before
Principal Registrar of this court. Out of which, 50% of the same will
be given to the petitioners and 50% will be utilized for the benefit of
needy who are facing hardship during this Covid 19 Pandemic
scenario.
44. The order be communicated to the Principal Secretary of the
respondent department for necessary compliance and the order be
complied with within a period of three months from the date of
receipt of certified copy of this order. If compliance of the order is
not made within three months and the arrears of classification are not
paid to the petitioners within the aforesaid period, the petitioners
would be entitled to interest on the arrears from the date of their
classification at the rate of 8% per annum.
45. With the aforesaid observations, this petition stands allowed
and disposed of.
46. A copy of this order be placed in the record of files stated
herein above.
CC as per rules.
(Vishal Mishra)
Rks. Judge
26/08/2021.
RAM KUMAR
SHARMA
2021.08.28
15:06:40 +05'30'
