Kandhi Lal vs The State Of Madhya Pradesh
2022 Latest Caselaw 6169 MP

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   HIGH COURT OF MADHYA PRADESH AT JABALPUR

                       BEFORE
         HON'BLE SHRI JUSTICE SANJAY DWIVEDI

                     Writ Petition No. 19815/2017

1. Kandhi Lal, s/o Lt. Shri Janki
Prasad, Aged about 46 years,
Chowkidar.

2. Pramod Kewat, s/o Shri Muna
Lal Kewat, Aged about 38 years,
Cook.

3. Vijay Kumar Khare, s/o Lt. Shri
Janki Prasad Khare, Aged about
60 years, Chowkidar.

4. Santosh Kumar Patel, S/o late
Shri Ayodhya Prasad Patel, Aged
about 57 years, Chowkidar.

5. Rajendra Kumar Patel, S/o late
Shri Surendra Kumar Patel, Aged
about 48 years, Gardner.

Petitioner Nos. 1 to 5 are working
in the office of Superintendent,
Children Observation Home,
Gokalpur,     Jabalpur,    District
Jabalpur (MP).

6. Heman Lal Patahe, S/o Lt. Shri
Nanu Patahe, Aged about 52
years, Cook.
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7.Ganpati Kumar, S/o Shri
Mangan Kumar, Aged about 51
years, Chowkidar.

Petitioner Nos. 6 and 7 are
working in the office of
Superintendent After Care Home,
Gurudev      Colony,     Supatal,
Jabalpur.

                                             .....PETITIONER

                                       Vs.

1. State of Madhya Pradesh,
through the Principal Secretary,
Social Justice and Disabled
Welfare   Department,   Vallabh
Bhawan, Bhopal (MP).

2. The Principal Secretary, Women
and       Child       Development
Department, Vallabh Bhawan,
Bhopal (MP).

3. The Commissioner, Social
Justice & Disabled Welfare
Department, Madhya Pradesh,
Bhopal (MP).

4.   the     Director, Women
Empowerment, Madhya Pradesh,
Bhopal (MP).

5. The Collector, District Jabalpur,
Jabalpur (MP).
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6. The Joint Director, Panchayat &
Social Justice, Jabalpur, District
Jabalpur (MP).

7. The Joint Director,Integrated
Child     Development        Services
Kachhiyana Chowk, Gole Bazar,
Jabalpur, District Jabalpur (MP).
                                                      .....RESPONDENTS

Date of Judgment           26.04.2022

Bench Constituted          Single Bench

Order delivered by         Hon'ble Shri Justice Sanjay Dwivedi

Whether approved       for No
reporting

Names of counsel for For petitioners: Shri K.C. Ghildiyal, Advocate.
parties              For Respondents: Shri Swapnil Sohgoura,
                     Government Advocate.
Reserved on: 03.02.2022
Delivered on: 26.04.2022

                                ORDER

Petitioners have filed this petition under Article 226 of the Constitution of India questioning the legality, validity and propriety of the order dated 28.04.2017 (Annexure P/15) issued by the respondent No. 3 rejecting the claim of the petitioners for grant of regular pay scale in the light of the order dated 21.04.2016 passed in WP No. 6528/2016. The petitioners have also claimed that the respondents may also be directed to regularize their service in the Work Charged Establishment w.e.f. 2005, as has been done in the cases of the petitioners in WP No. 14292/2010 (S).

2. The brief facts of the case are that the petitioners were initially appointed as daily wagers in the Department of Panchayat and Social Justice on Collector rate. The appointment orders were issued in favour of the petitioners on different dates, which are mentioned in paragraph 5.1 of the petition and the said orders are filed and cumulatively marked as Annexure P/1.

3. On 10.05.1984, a circular was issued by the General Administration Department regarding grant of regular pay scale to the employees working under the Work Charged Establishment and being paid wages fixed by the Collector. The circular provides that the regular pay scale of Work Charged Establishment would be granted to the employees who had completed three years of their service on the wages fixed by the Collector. As per the circular dated 10.05.1984, the cases of the petitioners were considered and accordingly orders dated 29.06.1998, 30.11.1998, 03.12.1998 and 15.02.1999 were issued granting them regular pay scale. Thereafter, an order was passed by the Commissioner, Panchayat and Social Justice, Madhya Pradesh on 17.04.2000 (Annexure P/5) withdrawing the regular pay scale already granted to the petitioners and it was also directed that they be kept on the same pay and post which was sanctioned.

4. The petitioners assailed the order dated 17.04.2000 by filing petitions i.e. WP Nos. 15045/2003 and 15043/2003. The said writ petitions were allowed by the High Court vide orders dated 10.11.2003 (Annexure P/6) quashing the orders of withdrawing the regular pay scale. The High Court while quashing the said orders observed that the benefit of granting benefit of regular pay scale cannot be withdrawn without giving opportunity of being heard to the employee concerned. Consequently, in

pursuance to the order dated 10.11.2003 passed by the High Court the pay scale, which was withdrawn by the respondents, was restored by the respondents vide order dated 23.04.2004.

5. Thereafter, again an order was issued by the respondents on 17.12.2004 (Annexure P/8) whereby the regular pay scale, which was being paid to the petitioners and other employees, was directed to be withdrawn and it was directed that they be paid the wages as per the rate fixed by the Collector for the daily wage employees. Challenging the said order, various petitions were filed by the employees affected including the petitioners and the said petitions were decided by a common order dated 13.05.2005. The High Court remitted the matter to the authority for considering the claim of the petitioners and other employees afresh in the light of the memo dated 10.05.1984 and circulars dated 22.11.1988, 15.12.1998 and 15.01.1985. The order dated 13.05.2005 was challenged by the respondents-State by filing SLP, which was dismissed by order dated 20.01.2006 and as such the order passed by the High Court attained finality. After dismissal of the SLP, in compliance to the order dated 13.05.2005 passed by the High Court, the respondents-authority issued an order on 17.11.2006 (Annexure P/11) taking a stand that since no posts are available in the department, therefore, the petitioners cannot be granted the benefit of regular pay scale.

6. It is pertinent to mention here that by order dated 10.01.2011 (Annexure P/4), the services of the petitioners were transferred to Women and Child Development Department.

7. The order denying the benefit of granting regular pay scale was assailed by some of the similarly situated employees in WP No. 14292/2010. The said writ petition was decided and allowed vide order dated 02.02.2012. The stand of the respondents that the regular pay scale cannot be granted to the petitioners therein on the ground that the posts were not vacant was not found proper by the High Court and, therefore, the order under challenge was quashed directing respondents to pay regular pay scale to the petitioners alongwith arrears. In compliance to the order passed in WP No. 14292/2010, the benefit of regular pay scale was granted to the petitioners therein.

8. In view of the compliance of the order passed in WP No. 14292/2010, the petitioners also made representations to the respondents- authority claiming the same benefit as was granted in WP No. 14292/2010, but when no action was taken by the authority on their representations, they filed a writ petition i.e. WP No. 6528/2016, which was disposed of vide order dated 21.04.2016 directing respondents to consider the representation of the petitioners and pass the order in the light of the order dated 02.02.2012 passed in WP No. 14292/2012. The respondents thereafter passed an order dated 28.04.2017 (Annexure P/15) rejecting the representations of the petitioners saying that the benefit of regular pay scale cannot be granted to them as they have not completed three years of service as daily wagers as on 1st of January, 1990. The petitioners, therefore, have preferred this petition assailing the order dated 28.04.2017 (Annexure P/15) seeking quashment of the same and also claiming that the benefit of regular pay scale, which had been granted to them earlier be continued.

9. The respondents have filed their reply taking stand therein that the claim of the petitioners has rightly been rejected on the ground that no posts are lying vacant in the department and also on the ground that as on 1st of January, 1990 they did not complete three years of service as daily wagers and as per circular dated 15.12.1992 (Annexure P/16), which superseded the earlier circular dated 10.05.1984, only those persons were found entitled to get regular pay scale, who had completed three years of service as daily wagers on 1st of January, 1990.

10. Learned counsel for the petitioners has mainly contended that when benefit of regular pay scale was granted to the employees, who filed WP No. 14292/2010, which was disposed of directing respondents to consider their claim in the light of the order passed in the said petition then there was no reason for the respondents-authority to reject the representations of the petitioners and deny them granting of regular pay scale. He has submitted that the petitioners are also equally entitled to get the same benefit as has been granted to the petitioners of WP No. 14292/2010.

11. I have heard the arguments advanced by the learned counsel for the parties.

12. From perusal of the record it is apparent that the respondents have issued various circulars from time to time and also instructions changing stand therein just to grant benefit of regular pay scale to the employees getting wages from the Work Charged Contingency Fund. On screening the order passed by High Court in WP No. 14292/2010, it is crystallized that the stand taken by the respondents for not granting the benefit of circular dated 10.05.1984 to the employees only on the ground that the

posts are not lying vacant was rejected by the Court saying that it was misunderstood by the authority that the circular dated 10.05.1984 does not say about the claim of regularization but provides granting regular pay scale of Work Charged Establishment and finally the said benefit was granted to the employees who filed WP No. 14292/2010. Thus, in view of the above, I do not find any merit in the submission made by the respondents for not granting the benefit of regular pay scale to the petitioners only because they did not complete three years of service on 1 st January, 1990. In the reply submitted and even during the course of arguments, the respondents failed to establish any justifiable reason as to what difference would be made if an employee completes three years of service on 1st January, 1990 or thereafter in the Work Charged Establishment on the wages paid to him on Collector rate. Therefore, a logical conclusion can be drawn that the petitioners should be granted the benefit of regular pay scale after completion of three years of service on Collector rate. From the record, it is clear that the benefit of regular pay scale was already granted to the petitioners, but, that was withdrawn for the reason that the posts were not lying vacant in the department and that stand of the respondents was assailed by the employees including the petitioners before the Court and the Court by a detailed order rejected the said stand of the respondents.

13. In the case at hand, the petitioners are claiming regular pay scale w.e.f. 2005 and also regularization in the Work Charged Establishment, but so far as the claim of regularization is concerned that claim is not involved and subject matter in this petition, therefore, no direction can be given in that respect. However, as far as the claim with regard to grant of regular

pay scale is concerned, the petitioners are entitled to get the same because the stand taken by the respondents in their reply or in the order of rejection of claim of the petitioners does not appear to be logical and in fact that has already been rejected by the Court on earlier occasion. The claim of the petitioners cannot be rejected by the respondents on the ground that on 1 st of January, 1990 they did not complete three years of service whereas they were appointed between 1987 and 1990 and the benefit of regular pay scale, on completing three years of service on Collector rate, was rightly granted to them.

14. In view of the discussion made herein above, this petition is allowed. The order dated 28.04.2017 (Annexure P/15) is hereby set aside. Since in the relief clause regular pay scale of Work Charged Establishment is claimed w.e.f. 2005, it is directed that the same shall be given to the petitioners and the arrears of regular pay scale shall also be calculated and paid to them within a period of three months from submitting certified copy of this order.

15. The petition is allowed to the extent indicated hereinabove. No order as to costs.

(Sanjay Dwivedi) Judge

Raghvendra RAGHVENDRA SHARAN SHUKLA 2022.04.27 16:21:02 +05'30'