Virendra Kumar Bhatele vs The State Of Madhya Pradesh Thr
2021 Latest Caselaw 2473 MP

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                HIGH COURT OF MADHYA PRADESH
                          W.P.No.20268/2018
     (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

Gwalior, Dated : 17.06.2021

      Shri Prashant Sharma, learned counsel for the petitioner.

      Shri R.P.Singh, learned Govt. Advocate for the State.

      With the consent of the parties, the matter is finally heard

through Video Conferencing.

      The present petition is being filed under Article 226 of the

Constitution of India seeking following reliefs:-

          "i.    The order impugned annexure P/1 to the
          extent it relates to petitioner may kindly be
          quashed.
                 Any other relief which this Hon'ble Court
          deems fit in the fact and circumstances of the case
          may also kindly be granted."

      Challenge is being made to the order dated 31.07.2018 passed by

the respondent whereby the respondents have retired the petitioner at

the age of 60 years w.e.f. 31.07.2018 whereas the age of

superannuation is 62 years.

It is submitted that the petitioner is discharging his duties as

Class-IV employee in the respondents' department. Date of birth of the

petitioner is 07.07.1958 which is recorded in the service record. The

petitioner was working as Driver on daily wage employee in the

respondents' department. The date of superannuation of Class-IV

employee is 62 years which has been decided by the State Government

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

and the Rule of 2013 has been framed and are in existence, according

to which, the age of superannuation of Class-IV employee is 62 years.

The respondents have passed the order impugned dated 31.07.2018

(Annexure P/1) retiring the petitioner on 31.07.2018 on attaining the

age of 60 years. Despite of the fact that the petitioner is entitled to

continue upto 62 years.

Per contra, learned Govt. Advocate for the Sate, by filing the

reply in the petitioner, has denied the contentions and has pointed out

that the age of superannuation of a daily wager employee was earlier

governed by the Standard Standing Orders wherein the age of

superannuation was 58/60 years. The matter was considered by the

Division Bench of this Court in the case of Mahesh Rajak Vs. State

of M.P. and Ors., 2012 (4) MPLJ 366 wherein it was held that the

daily wager employees are not entitled to continue up to 62 years age.

This position continued till the State Government has framed the Rules

namely M.P. Daily Wage Employee (Conditions of Service) Rules,

2013 and were applicable to the employees who were working on

Class-IV or equivalent post and the age of superannuation will be 62

years and Class-III employee will be 60 years. The rules were repealed

on 02.02.2018, as a result of which, the Standard Standing Orders

again applied to the case of the petitioner wherein the date of

superannuation of a Class-IV employee is 60 years which is applicable

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

to the case of the petitioner now and considering the same, they have

passed the impugned order retiring the petitioner on attaining the age

of superannuation. It is further pointed out that the aforesaid position

again applied to "Sthaikarmi" who have been given the status of "Sthai

Karmi" under the Circular dated 07.10.2016. In such circumstance, no

illegalities is committed by the respondents passing the impugned

order. By filing the application for taking documents on record, they

have further brought the subsequent policy dated 19.12.2019 wherein it

is to substantial the arguments that now the decision has been taken by

the State Government to continue Class- III and Class- IV employee

upto 60 and 62 years respectively, but this policy is made applicable

from the date of issuance of policy and was held to be prospective in

nature. He has brought on record an order dated 30.01.2020 in

W.P.No.26672/2019 (Shambhu Singh Kushwah Vs. The State of

Madhya Pradesh and Others) passed by the Coordinate Bench of this

Court wherein the similar kind of petition was dismissed granting

liberty to the petitioner to file a fresh petition challenging the

prospective operation of the order dated 19.12.2019. In such

circumstances, he has prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is admitted position that the

petitioner was working as daily-rated employee in the respondents'

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

department and on attaining the age of 60 years, the respondents have

passed the order whereby they are retiring the petitioner on attaining

the age of superannuation. The impugned order is that the petitioner

has been working as daily-rated employee on a Class-III post and even

applying the Rules of 2013 as he was discharging his duties as Class-

III employee at the age of superannuation of 60 years as has been

putforth by the respondents. From the perusal of return of the State

Government, it is clearly seen that in view of the judgment passed by

the Hon'ble Supreme Court in contempt proceedings in the case of

classified employee. The Government has framed the policy dated

07.10.2016 wherein the three different categories the daily-rated

employees have been formulated.

The aforesaid position was considered by the Court Bench at

Indore in the case of Brigank Mohan Mishra Vs. State of M.P. and

Others, decided 02.09.2019 in W.P.No.28785/2018 wherein it has

held that:-

"The daily-rated employees classified as "permanent employee" would be entitled to pay- scale of permanent post from the dates specified in the award by the Labour Court, but the daily-

rated employees appointed without following any selection procedure and their appointments were not against the regular vacancies, in normal circumstances, these persons, because of their long service and also on the assumption that they are discharging the same duties as discharged by the regular employees, can claim same salary

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

which is being paid to regular employees holding similar posts on principles of "equal pay for equal work". The "permanent employee" has right to receive pay in the graded pay scale, at the same time but he would be getting only minimum of the said pay scale with no increments. It is not the regularisation in service which would entail grant of increments, etc. in the pay scale. In compliance of the aforesaid judgment of apex Court, the GAD came up with the scheme of regularisation of daily-rated employee as permanent employee in three categories vide circular dated 7.10.2016 as Kusal/Ardhkusal and Kusal. The Court has considered the aspect that there was no such category in the aforesaid scheme as Class-III and Class-IV employee.

The Court has further held as under :-

"8. While deciding the age of retirement of Class III and Class IV daily rated employees, no reasonable classification has been disclosed in the above circular. It is well established that the classification should be based on some qualities or characteristics of group of persons together. Those qualities and characteristics must have a reasonable relation of the objection to be achieved. Vide above circular, a decision has been taken to have two different age of retirement for Class III and Class IV daily rated employees, whereas for regular Class III and Class IV employees, there is no difference in the age of retirement. Therefore, in this circular, there is no basis behind classification of two different age of retirement of Class III and Class IV daily rated employees. However, circular dated 9.11.2012 was issued prior to framing of scheme of classification of daily rated employees vide circular dated 7.10.2016. In circular dated 7.10.2016, the age of superannuation of daily-rated employees who have been classified as "permanent employee" has not been decided. Even, circular dated 9.11.2012 has not been adopted. However, lateron

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

the State Government came up with the new circular dated 3.5.2017 in which the age of retirement of Class III and Class IV daily rated employees is 60 and 62 years respectively based on the circular dated 9.11.2012. Once the apex Court has held that all the dailyrated employees are entitled for classification as permanent employee and in the light of the said judgment, the State Government has issued the circular dated 7.10.2016 to classify the daily-rated employees as permanent employees and they have been classified only as unskilled, semi-skilled, and skilled. There is no category like Class III and Class IV permanent employee in the circular dated 7.10.2016,therefore, there is no basis to have two different age of retirement for Class III and Class IV daily rated employee who have been classified as permanent employee. When the pay-scales are common for all the daily-rated employee who have been classified as permanent employee, then there should be common age of retirement i.e. 62 years for all of them. In the case of the present petitioner, vide order dated 16.1.2017, he has only been classified permanent employee as Timekeeper without specifying to be class III or IV. When there is no difference in age of retirement for the regular Class III and Class IV employees, then there should not be two different age of superannuation for classified permanent employees. Hence, the petitioner is liable to continue up to the age of 62 years.

9. Consequently, this petition deserves to be and is hereby allowed and impugned order dated 5.1.2018 is hereby quashed. The respondents are directed to continue the petitioner in service up to 62 years of his age.

No order as to costs."

Subsequently the State Government has also issued as Circular

dated 19.12.2019 which reads as under:-

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HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

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HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

From the perusal of the aforesaid circular, it is seen that the same

is applicable from the date of issuance. But the fact remains that it has

been held by this Court in series of the judgments that the daily-rated

employee is entitled to continue upto 62 years. The aforesaid judgment

was followed subsequently as has further been upheld by this Court in

the case of Anil Singh Dikhit Vs. State of M.P. dated 16.02.2021 in

W.P.No.23156/2019.

In such circumstances, learned Govt. Advocate for the State

could not dispute the aforesaid preposition but has only submitted that

the reply has been filed in the matter and the Court may decide the case

in accordance with the reply. But it is not disputed that the daily wages

employee is entitled to continue upto 62 years of age. In such

circumstances, the petitioner who is admittedly working on the post of

daily rated employee. Even if it is assumed that he is discharging his

duties as Class-III then he is also entitled to continue upto 62 years as

has been held by the Coordinate Bench at Indore in the case of

Brigank Mohan Mishra (supra). In such circumstances, the order

impugned dated 31.07.2018 (Annexure P/1) retiring the petitioner on

attaining the age of superannuation as 60 years is hereby quashed. The

petitioner is directed to continue upto 62 years.

Accordingly, the petition is allowed.

No order as to costs.

HIGH COURT OF MADHYA PRADESH W.P.No.20268/2018 (Virendra Kumar Bhatele Vs. The State of M.P. & Others)

E-copy of this order be provided to the petitioner and it is made

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                                                 (Vishal Mishra)
AK/-                                                 Judge
        ANAND KUMAR
        2021.06.18
        18:47:43
        +05'30'