Daya Ram Kushwaha vs The State Of Madhya Pradesh
2022 Latest Caselaw 16037 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                            BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 5th OF DECEMBER, 2022

                 WRIT PETITION NO.7280 OF 2019

     Between:-

     DAYA RAM KUSHWAHA S/O SHRI UDUA
     RAM KUSHWAHA AGED 53 YEARS,
     OCCUPATION SERVICE R/O KALI MAI
     MANDIR,  HOME    GUARD   OFFICE,
     SHIVPURI
                                                 ........PETITIONER

     (BY SHRI B.P. SINGH - ADVOCATE)

     AND

1.   STATE   OF    MADHYA    PRADESH
     THROUGH THE PRINCIPLE SECRETARY,
     PUBLIC    HEALTH    ENGINEERING
     DEPARTMENT MANTRALAYA, VALLABH
     BHAWAN, BHOPAL MADHYA PRADESH

2.   ENGINEER-IN-CHIEF, PUBLIC HEALTH
     ENGINEERING    DEPARTMENT,   JAL
     BHAWAN, BANGANGA ROAD, BHOPAL,
     MADHYA PRADESH.

3.   CHIEF ENGINEER, PUBLIC HEALTH
     ENGINEERING DEPARTMENT, NEAR
     WATER TANK, THATIPUR, MORAR,
     GWALIOR, MADHYA PRADESH.

4.   EXECUTIVE   ENGINEER,   PUBLIC
     HEALTH ENGINEERING DEPARTMENT,
     SHIVPURI   DIVISION   SHIVPURI,
     MADHYA PRADESH
                                             ........RESPONDENTS

     (BY SHRI SUSHANT TIWARI - GOVERNMENT ADVOCATE)
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       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-

(i) That, a direction may kindly be given to the respondents to pay the salary as per pay scale of the post of Pump Operator to the petitioner as ordered by the respondents themselves from the date of his classification as per law laid down by the Hon'ble Supreme Court in the case of Ram Naresh Rawat along with benefit of revised pay scale.

(ii) Any other relief, which this Hon'ble Court may deem fit and proper, may also be given to the petitioner.

2. It is submitted by the counsel for the petitioner that initially he was appointed on daily wages on 01.04.1985. The petitioner has completed more than 33 years of service. Earlier he was being paid on muster roll and from the year 2000, payment has been made through treasury on monthly basis. On 17.02.2003 the petitioner was classified and was declared as permanent on the post of Helper. Initially the post of petitioner was mentioned as Pump Attendant, but on representation, it was amended and was classified as Pump Operator with effect from 26.11.1985. Although the petitioner was classified as permanent employee, but the benefits of the classified permanent employee were not given and, accordingly, the petitioner filed W.P. No.1491/2015, which was decided by order dated 10.04.2015 with a direction to the respondents to consider the representation. When the respondents did not comply the order, the petitioner filed contempt petition and during

pendency of the contempt petition, order dated 22.04.2018 was passed and, accordingly, the contempt petition was dismissed with liberty to the petitioner to file a fresh petition. It is submitted by the counsel for the petitioner that the respondents by the impugned order have erroneously held that the petitioner was wrongly classified as permanent employee. The claim of the petitioner has been rejected mainly on the ground that he has been given the benefit of Sthaikarmi as per the Viniyamitikaran Scheme dated 07.02.2016. It is submitted that the impugned order amounts to cancellation of classification although it has not been mentioned in specific term. It is submitted that the petitioner in the light of the judgment passed by the Supreme Court in the case of Ram Naresh Rawat Vs. Ashwini Ray reported in 2017 (3) SCC 436 is entitled for minimum of the pay scale for the period from the order of classification till he was conferred the benefit of Sthaikarmi. This Court in the case of Shiv Prasad Sen Vs. State of Madhya Pradesh and others passed in W.P. No. 14011/2021 has held that cancellation of the classification order is not in accordance with law.

3. Per contra, the petition is vehemently opposed by the counsel for the State.

4. This Court by order dated 17.07.2019 passed in W.P.No.7295/2019 has passed the following order:-

Gwalior, Dated : 17-07-2019 Shri B.P.Singh, Advocate for the petitioner. Shri R.S.Bansal, Government Advocate for respondent/State.

Petitioner herein seeks benefit flowing out of the decision of Apex Court in the case of Ram Naresh Rawat Vs. Ashwini Ray and Ors., (2017) 3 SCC 436 to the extent of praying for wages/salary equivalent to

the minimum of the regular pay scale admissible to the post against which he was classified (Pump Attendant) by orders dated 21.04.2003 (Annexure P-2) and 14.05.20017 (Annexure P-3).

Respondent/State by passing Annexure P-1 has held that the order of classification of petitioner as a permanent employee by order dated 21.04.2003 (Annexure P-3) is bad in law and instead has declared the petitioner to be "Sthai Karmi" under the circular of government dated 07.10.2016 and has extended pecuniary benefits flowing from the said circular w.e.f. 01.09.2016.

The only question which needs to be answered herein as to whether in the given facts and circumstances where the order of classification (Annexure P-2) passed in favour of the petitioner which has been declared to be bad in law vide Annexure P-5 can be treated to be intact or not? and what relief can be granted to the petitioner in terms of Ram Naresh Rawat (supra) which is founded upon the assumption of order of classification being intact.

Issue notice to the respondents on payment of process fee within seven working days, failing which petition shall stand dismissed without further reference to this Court.

5. If the facts of the case are considered, then it is clear that although the respondents have not cancelled the classification order of the petitioner, but by declaring it to be bad in law has nullified the effect of the same. Thus, the effect of the impugned order dated 20.04.2017 amounts to cancellation of classification order for all practical purposes.

6. It is submitted by the counsel for the petitioner that the question of cancellation of classification order is covered by judgment dated 26.08.2021 passed by coordinate Bench of this Court in W.P. No.4018/2020 (Kamta Prasad Vs. State of Madhya Pradesh and others). The said order was challenged by the State by filing W.A.

No.1166/2021 which too has been dismissed by the Division Bench of this Court by order dated 03.03.2022 and the order passed by the Writ Court was maintained except the cost which was imposed. Thus, it is submitted that in the light of the order passed in the case of Kamta Prasad (supra), the impugned order of cancellation of classification order is liable to be quashed. It is further submitted that the benefit of minimum of pay scale has not been given although he has been declared as Sthaikarmi.

7. Per contra, counsel for the State could not point out any distinguishable aspects and also admitted that the case in hand is duly covered by order passed by coordinate Bench of this Court in the case of Kamta Prasad (supra).

8. Heard the learned counsel for the parties.

9. The controversy involved in the present case is duly covered by the order passed by coordinate Bench of this Court in the case of Kamta Prasad (supra). Although the order of classification of the petitioner has not been cancelled after a direction was given to decide the representation for extending the benefit of minimum of pay scale as directed by the Supreme Court in the case of Ram Naresh Rawat Vs. Ashwini Ray and others reported in (2017) 3 SCC 436, but by holding it bad, it amounts to cancellation of all practical purposes.

10. In absence of any distinguishable features, this petition is also allowed in the terms and conditions of the order dated 26.08.2021 passed in W.P. No.4018/2020 and the impugned order dated 20.04.2017 by which the classification order of the petitioner was held to be bad, is hereby quashed.

11. Since the order dated 20.4.2017 by which the classification of the

petitioner was held to be bad has been set aside, therefore, it is directed that the petitioner is entitled for the minimum of the pay scale from the date of his classification till the date of attaining the status of Sthaikarmi. Accordingly, on a representation made by the petitioner, the respondents are directed to release the benefits within a period of three months.

12. No order as to cost.

(G.S. AHLUWALIA) JUDGE (alok)

ALOK KUMAR 2022.12.09 09:56:24 +05'30'