Tilak Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8431 MP

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       THE HIGH COURT OF MADHYA PRADESH
                  W.P. No.21280/2021
              Tilak Singh Vs. State of M.P.

Gwalior Bench:
Dated :08.12.2021

      Shri B.M. Patel, learned counsel for the petitioner.

      Shri Jitesh Sharma, learned Govt. Advocate for the

respondent/State.

The present petition has been filed challenging the order dated

19.04.2021 passed by respondent No. 3, whereby representation

submitted by the petitioner in compliance of the order passed by this

Court dated 19.04.2021 in W.P. No. 1539/2020 has been rejected on

the ground that during the examination of the legacy of the

appointment order of the petitioner, the permanent classification was

not found to be intact because the permanent classification order was

canceled in the year 2011 itself.

It is pointed out that the issue involved is squarely covered

and settled by Hon'ble Supreme Court in the case of Ram Naresh

Rawat Vs. Ashwani Naik & others, (2016) 8 SCC 733 and

considering the aforesaid judgment, several petitions have been

disposed of by the Hon'ble Supreme Court even by Division Bench

of this Court.

Considering the aforesaid analogy and orders passed by

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

several benches of this Court in several writ petitions, this Court has

passed W.P. No. 4018/2020 in the case of S. Kamta Prasad Vs.

State of M.P. & others decided on 26.08.2021, wherein a bunch of

petitions was decided and it was observed that the law with respect

of classification of employees have been settled up to the Hon'ble

Supreme Court.

The contention of the respondents that the classification order

passed in the year 2003-04 was canceled subsequently in various

orders in 2011. The aforesaid order was put to challenge by filing a

writ petition No. 5023/2011 in the name of Rajya Nirman Vibhag

Karmchari Sangh, Gwalior vs. State of M.P., which was finally

heard and decided in analogous hearing in writ petition

No.6037/2011 (Vijay Kumar Jain Vs. State of M.P. & others)

decided on 14.12.2011. The aforesaid case has traveled up to the

Hon'ble Supreme Court and has attained finality. This Court from

para 23 of the judgment has held as under:-

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

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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 26th 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.

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

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.

When the matter was taken up in the first round, this Court

found that the impugned order is passed by the authority is contrary

to the law laid down by the Supreme Court in various judgments

passed by this Court, therefore, directed for personal presence of the

Chief Engineer, Public Health and Engineering Department,

Gwalior.

When the matter was taken up in second round, the Executive

Engineer was present before this Court and has submitted that they

are aware of the fact that matter has been settled up to the Hon'ble

Supreme Court and in pursuance to the same they have also

calculated arrears of petitioner to be paid to him. He fairly submits

that the order impugned passed is contrary to the judgments and

orders passed on various occasions by this Court as well as the

Hon'ble Supreme Court. He submits that the payment towards the

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

arrears will be calculated and actual payment will be made to the

petitioner within a short time. Sanction from the Finance Department

has also been received in the matter.

It is further pointed out that after passing of the order in the

case of Kamta Prasad (Supra), the Authorities have taken sanction

from the Finance Department for complying with the order and has

already made payments of more than 500 employees.

It is argued that although writ appeal is being preferred being

W.A. No. 1166/2021 by the State Government but in the aforesaid

writ appeal also the Authority has only prayed for setting aside of the

cost which have been imposed by this Court while deciding the writ

petitions.

As far as merits are concerned, they are not willing to

challenge the same. It is submitted by him that the Authorities are

duty bound to comply with the direction given by this Court and by

no stretch of imagination they can think disobey the order passed by

this Court.

This Court has asked the Authority to file affidavit in

pursuance of statements made before this Court and in compliance

of the same, Executive Engineer Shri V.K. Chhari has filed his

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

affidavit to the following effect:-

The humble answering respondent No.4 state on oath as:-

1. That, the matter was posted today for hearing wherein Hon'ble Court was pleased to call the deponent to explain by the impugned order dated 19.04.2021 (Annexure P/1) has been passed despite knowing the fact that matter in question with respect to providing minimum pay scale after classification of the employees has attained finality up to the Apex Court.

2. That, deponent further states on oath that in the days months and year to come the mistake in question shall not be repeated and in the matters where in issue with respect to the classification attained finality shall be paid without undue delay in time shall not insist to the incumbent to knock the door of Hon'ble Court in any manner in the coming days, month and year to come and shall provide the minimum of regular pay scale with relevant benefits with the cases pending with the Public Health Engineering Department Division No.1 District Gwalior and the deponent tender unconditional apology for inconvenience caused to this Hon'ble Court.

Looking to the overall facts and circumstances of the case and

statement made by the Executive Engineer in the matter as they are

undertaking to comply with the order passed by this Court within a

short time and arrears will be paid to the petitioner, the order passed

by the Authorities (Annexure P/1) dated 26.02.2021 does not sustain

the judicial scrutiny and is hereby quashed. Authorities are directed

to restore the position of the petitioner as a classified employee and

are directed to make the payments of arrears to the petitioner within

THE HIGH COURT OF MADHYA PRADESH W.P. No.21280/2021 Tilak Singh Vs. State of M.P.

a period of one month from today, failing which the arrears so

calculated will carry an interest @ 8% per annum till the date of its

realization.

(Vishal Mishra) Judge neetu NEETU SHASHANK 2021.12.15 11:11:03 +05'30'