Madhya Pradesh High Court
Vishnu Kushwaha vs The State Of Madhya Pradesh on 22 September, 2022
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF SEPTEMBER, 2022
WRIT PETITION NO. 7295 OF 2019
Between:-
VISHNU KUSHWAHA S/O SHRI
PRABHU LAL KUSHWAHA, AGED
50 YEARS, OCCUPATION SERVICE,
R/O NEELGHAR CHOURAHA,
KUSHWAHA MOHALLA, OLD
SHIVPURI, DISTRICT SHIVPURI
........PETITIONER
(BY SHRI B.P. SINGH - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THOROUGH THE PRINCIPAL
SECRETARY, PUBLIC HEALTH
ENGINEERING DEPARTMENT
MANTRALAYA, VALLABH
BHAWAN, BHOPAL, MADHYA
PRADESH
2. ENGINEERING-IN-CHIEF, PUBLIC
HELATH ENGINEERING
DEPARTMENT, JAL BHAWAN,
BANGANGA ROAD, BHOPAL,
MADHYA PRADESH
2
3. CHIEF ENGINEER, PUBLIC
HEALTH ENGINEEERING
DEPARTMENT, NEAR WATER
TANK, THATIPUR, MORAR,
GWALIOR, MADHYA PRADESH
4. EXECUTIVE ENGINEER, PUBLIC
HEALTH ENGINEERING
DEPARTMENT, SHIVPURI
DIVISION, SHIVPURI, MADHYA
PRADESH
........RESPONDENTS
(SHRI DEVENDRA CHAUBEY - GOVERNMENT ADVOCATE
FOR STATE)
----------------------------------------------------------------------------------------
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 relief:-
(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 alongwith benefit of
revise 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 01.08.1986. The petitioner has completed
more than 32 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
28.03.1987. 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.1490/2015, 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 20.04.2017 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 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.
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 31.07.2017 by
which the classification order of the petitioner was held to be bad, is
hereby quashed.
11. No order as to cost.
(G.S. AHLUWALIA)
JUDGE
Abhi
Digitally signed by
ABHISHEK CHATURVEDI
Date: 2022.09.27 19:12:08
+05'30'
