Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rafiq Khan on 6 December, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 6 th OF DECEMBER, 2023
WRIT APPEAL No. 844 of 2023
BETWEEN:-
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. PRAMUKH ABHIYANTA LOK NIRMAN VIBHAG
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
3. KARYAPALAN YANTRI LOK NIRMAN VIBHAG
SAMBHAG NO. 1 OLD PALASIYA INDORE
(MADHYA PRADESH)
.....APPELLANTS
( SHRI BHUWAN GAUTAM, GOVT. ADVOCATE FOR THE APPELLANTS)
AND
RAFIQ KHAN S/O SHRI CHAND KHA OCCUPATION:
RETIRED POULTRY ASSISTANT R/O H.NO. 206 MALVIYA
NAGAR VETERINARY COLLEGE POST RASALPURA
MHOW INDORE (MADHYA PRADESH)
.....RESPONDENT
(SHRI AVIRAL VIKAS KHARE, LEARNED COUNSEL FOR THE
RESPONDENT [R-1])
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
The matter is heard finally with the consent of the parties.
Heard on I.A.No. 4620/2018, application for condonation of delay.
2. Learned counsel for the appellants/State submitted that delay
occurred in filing the present writ appeal is bonafide as in compliance of the
directions passed by this Court, the representation filed by the respondent was
addressed and decided belatedly due to outbreak of Covid-19 pandemic.
Before any decision could be taken on the representation filed by the
respondent, contempt petition No. 249/2021 was filed by the respondent. The
representation of the respondent was dismissed vide order dated 24.09.2021.
The Contempt petition was allowed vide order dated 02.11.2022 and
appellant/State was directed to give the benefit to the respondents as per the
directions given in the order dated 21.01.2020. On receipt of certified copy of
the order in the office on 09.11.2022, the same was kept before the competent
authority on 17.11.2022 and legal opinion was sought from the Government
Advocate on 21.11.2022. On 26.12.2022, The Public Work Department of
M.P. Government has decided to file an appeal on 26.12.2022 and sought legal
opinion from the Law and Legislative Department which was accorded on
06.03.2023. The appeal was allotted to the Dy. Advocate General on
13.03.2023 but he was posted in Jabalpur. Thereafter, on 05.04.2023, the appeal
was allotted to the other Government Advocate. On the basis of documents
presented by the OIC, appeal was prepared and presented without any further
delay.
3. The learned counsel for appellants/State took a plea of Covid-19 on
the ground that the entire machinery was deployed in Covid-19 operations and
smooth functioning of the administration was affected to a great extent. As a
result of which timely action could not be taken. . Accordingly, the writ appeal
was filed.
4. Learned counsel for the appellants/State in support of his contentions
has placed reliance on the judgment passed in the case of State of Haryana
Vs. Chandramani and Others reported in 1996 (3) SCC 132 wherein it has
been held thus:
"When the State is an applicant, praying for condonation of delay, it is
common knowledge that on account of impersonal machinery and the
inherited bureaucratic methodology imbued with the note-making, file-
pushing, and passing-on-the-buck ethos, delay on the part of the State is
less difficult to understand though more difficult to approve, but the
State represents collective cause of the community. It is axiomatic that
decisions are taken by officers/agencies proverbially at slow pace and
encumbered process of pushing the files from table to table and keeping
it on table for considerable time causing delay intentional or otherwise -
is a routine. Considerable delay of procedural red tape in the process of
their making decision is a common feature. Therefore, certain amount of
latitude is not impermissible. If the appeals brought by the State are lost
for such default no person is individually affected but what in the
ultimate analysis suffers, is public interest. The expression "sufficient
cause" should, therefore, be considered with pragmatism in justice-
oriented approach rather than the technical detection of sufficient cause
for explaining every day's delay. "
5. Learned counsel for the appellant further contended that the delay is
genuine which has been caused due to procedural formalities and the same is
being bonafide on the part of the appellants. Therefore, delay in filing the
appeal deserves to be condoned.
6 . The present writ appeal under Section 2(1) of the Madhya Pradesh
Uchha Nyayalaya (Khand Nayapith Ko Appeal) Adhiniyam, 2005 has been filed
being aggrieved by the order dated 21.01.2020 passed in Writ Petition No.
2194/2019 in the light of order passed in Tejulal Yadav v/s. State of Madhya
Pradesh & Ors., 2010 M.P.L.S.R. 40 whereby the writ Court held that the
benefit of financial upgradation be extended to the petitioner (respondents
herein) who is also a work charge contingency paid employee.
7. Learned writ Court held that irrespective of the fact that the
employees serving under the work charge contingency paid establishment on
various posts such as Store Clerk, Time Keeper, Lab Assistant, Lineman, Meter
Reader, Telephone Attendant, Mason Grade-II etc., the benefit of the same has
been extended to all the identically situated employees, therefore, the present
respondent is also entitled for grant of kramonnati.
8. Learned counsel for the appellant/State argued that the Government,
in the year 1999 had introduced the policy granting first and second kramonnati
benefit to the employees who are working in the State Government for a long
period of time, however, due to non-availability of promotion and vacant posts,
they could not be given promotion. According to the policy, the employees,
who had completed atleast 12 years of service without promotion have been
provided benefit of first kramonnati and who have completed 24 years of
service without promotion were granted benefit of second kramonnati. He
further stated that these benefit could not be extended to the employees who are
working under the Work Charged Contingency Paid Establishment as there are
separate rules which govern such employees. The Work Charged Contingency
Paid Establishment employees were appointed without any selection process.
On the other hand, the regular establishment employees were appointed after
clearing various stages of selection process. He further submitted that the
impugned order was contrary to the government policy dated 21.09.2016, since
the rules applicable to employees of permanent establishment could not be
made applicable to the employees working under the Work Charged
Contingency Paid Establishment,. Even otherwise, the order in the case of
Tejulal Yadav(supra) was passed when the circular dated 21.09.2016 was not in
existence. Under such circumstances, the impugned order is liable to be set
aside.
9. Per contra, learned counsel appearing for the respondent by filing
reply to the application for condonation of delay (Doc. No. 13251/2023)
contended that it is not disputed that the order passed by the learned writ Court
was not in the knowledge of the appellant since inception. The appeal is
preferred with an inordinate delay of 1230 days. No day-to-day explanation has
been put forth in the application for condonation of such a huge delay. Since
there was utter defiance of the order passed by the learned writ Court, the
respondent has moved contempt petition. Despite issuance of contempt notice,
the appellants have not complied with the order passed by the writ Court and
kept sitting tight over the matter for long time. Thereafter on 24.09.2021, the
appellant passed an order in contravention to the order of writ Court holding the
respondent to be not entitled for the benefit of Kramonnati on the ground that
he belongs to Work Charge Establishment and thereafter as a counter blast,
this writ appeal has been filed wholly on untenable grounds. With a view to
overcome the statutory bar, the present application seeking condonation of
delay has been filed.
10. The appellants have not been able to explain the day to day
delay/put forth reasons for condoning the delay. In fact, the permission to file
writ appeal was granted on 23.02.2023. Hence, the appeal deserves to be
dismissed on the ground of limitation alone.
11 . We have heard learned counsel for the parties and perused the
record.
1 2 . In view of the settled legal principles of law when the delay and
latches in filing the writ petitions/appeals cannot be brushed aside, otherwise,
the same would amount to reviewing a dead/stale claim. Hence, the present
appeal deserves to be dismissed on the ground of delay and latches alone.
However, looking to the fact that the issue involved herein is no more res-
integra, therefore, we deem it appropriate to deal with the matter on merits as
well.
13. This Court, in case of Tejulal Yadav vs. State of Madhya
Pradesh (supra) in paragraph 4 to 12 has dealt with the same controversy,
which reads as under:
''Learned counsel for the petitioner placing reliance on the
judgment rendered by the Bench of this Court in Writ Petition (S)
No.1070/2003, K.L Asre v/s State, decided on 07.11.2005, submits
that when the work charged establishment Drivers and the Time
Keepers in the Public Works Department are held entitled for
promotion under the aforesaid scheme, the petitioner, who is a
contingency paid employee, is also entitled to the same benefits.
''5. In case of K.L. Asre (supra), the benefit of time bound
promotion is extended to the employees of Work Charge
Establishment in the Public Works Department and it is so held by
the learned Judge in paragraph no.5 of the aforesaid judgment,
which ready as under:
''On bare perusal of Annexure P/7 it is gathered that the
respondents are giving promotion under the Time Bound
Promotion Scheme to the Drivers serving under Work charge
Establishment. When the promotion under the Time Bound
Promotion Scheme is being given to the Drivers of the Work
Charge Establishment, then why the petitioner should not be
benefited in the same manner. The Supreme Court in the case of
Raghunath Prasad Singh Vs. Secretary, Home (Police) Department
Government of Bihar and others. AIR 1988 SC 1033 in para 4 has
held as under:-
"4. Before we part with the appeal, we would like to take notice
of another aspect. In course of hearing of the appeal, to a query
made by us, learned counsel for the appellant indicate the reason
as to why the appellant was anxious to switch over to the general
cadre. He relied upon two or three communications which are a,
part of the record where it has been indicate that there is no
promotional opportunity available in the wireless organisation.
Reasonable promotional opportunities should be available in
every wing of public service. That generates efficiency in service
and fosters the appropriate attitude to grow for achieving
excellence in service. In the absence of promotional prospects, the
service is bound to degenerate and stagnation kills the desire to
serve properly. We would, therefore, direct the State of Bihar to
provide at least two promotional opportunities to the officers of
the State Police in the wireless organisation within six months
from today by appropriate amendments of Rules. In case the State
of Bihar fails to comply, with this direction, it should, within two
months thereafter, give a fresh opportunity to personnel in the
Police wireless organisation to exercise option to revert to the
general cadre and that benefit should be extended to everyone in
the wireless organisation."
The same principle has been reiterated in the case of Dr. Ms. O.Z.
Hussain Vs. Union of India and others AIR 1990 SC 311. This
Court in the case of Smt. Kamla Devi Tiwari Vs. The State of M.P.
and another (W.P. No.9368/2003) decided on 05/01/2005 has held
that according to the decision of Raghunath Prasad Singh (Supra)
the employees are entitled for promotion and the respondents were
directed to extend the said benefit in terms of the decision of
Supreme Court in Raghunath Prasad Singh (Supra).
6 . Since the Time Bound Promotion scheme is applicable to the
Drivers serving under the Work Charge Establishment the view of
this Court is that the same is also applicable to the petitioner who
was serving on the post of Time Keeper and was retired from the
said post."
(Emphasis supplied)
6. Apart from the above, it is seen that the petitioner is working
in the Polytechnic College and is said to be a contingency paid
employee. Under the M.P. Education Department (Technical
Branch) Contingency Paid Employees Recruitment and Conditions
of Service Rules, 1978 a contingency paid employee is defined
under Rule 2(b) to mean a person employed for full time in an
office or establishment and who is paid on monthly basis and
whose pay is charged to "Office Contingencies" but it excludes
such of the employees who are employed for certain periods only
in the year. In the aforesaid Rules of 1978, the categorization of
employees in done under Rule-6 and the employees are classified
into two categories i.e. permanent and temporary. Under Sub-rule
2 of Rule-6, it is provided that on completion of 15 years of
continuous service the contingency paid employees shall be
eligible for attaining the status of permanent work charged or
contingency paid employees. The similar provisions are made in
the M.P. (Work Charged and Contingency Paid Employees)
Pension Rules, 1979 wherein the permanent employee is defined
under Rule 2(c) to mean a contingency paid employee or a work
charged employee who has completed 15 years of service or more
on or after 1st January, 1974.
7. The complete reading of these Rules indicates that a contingency
paid employee attaining the permanent status and a work charged
employee attaining the permanent status are treated to be similar
in all respects for the purpose of granting them pension and
revision of pay scales under the M.P. Work Charged and
Contingency Paid Employees Revision of Pay Rules, 1990 and
under the M.P. (Work Charged and Contingency Paid Employees)
Pension Rules, 1979."
8. Considering the fact that under the statutory rules also the
contingency paid and the work charged employees are considered
to be forming a common class. There is no reason why the benefit
of time bound promotion which is extended to the work charged
employees and why the judgment rendered in case of K.L. Asre
(supra), be not made applicable in the case of the present employee
also who has attained the status of a permanent work charged for
contingency paid employees and entitled to various benefits in the
matter of revision of pay and pension in identical manner.
9. A perusal of the policy as contained in Annexure P-3 further
indicates that even though the policy speaks about granting
Kramonnati under the scheme to employees in the regular
establishment, but by clauses (13) and (14) of the Scheme, the
Government has extended the benefit of Kramonnati to vehicle
drivers working in the work charged and contingency paid
establishment. A perusal of clauses (13) and (14) clearly indicates
that the benefit of Kramonnati after completing 12 years and 24
years of service is made applicable to the employees in the work
charged and contingency paid establishment.
10. As far as work charged and contingency paid employees are
concerned, their service conditions are governed by the same rules
namely Work Charge Contingency Paid Establishment Recruitment
Rules applicable to various departments and the Work Charged
Contingency Paid Employees Pension Rules, 1979 and the Work
Charged Contingency Paid Employees Revision of Pay Rules,
1990. For the purposes of recruitment, appointment, pay revision
and grant of pensionary benefits, the work charged and
contingency paid employees constitute a common class and their
terms and conditions of employment are governed by identical set
of rules. It is, therefore, clear that for the purpose of recruitment,
appointment, grant of pension and revision of pay scales, work
charged and contingency paid employees are treated similarly and
a separate set of rules, different from the one applicable in the
regular establishment, govern their terms and conditions of
employment. The work charged and contingency pad employees
constitute a common class, and therefore, this class of employees
are entitled to similar treatment in all respected deviation being
permissible on justifiable grounds and reasons. In the present
case, the benefit of time bound promotion under the scheme -
Annexure P-3 and P-4 is extended to vehicle driver working in the
work charged contingency paid establishment, as per the policy
itself.
11. The principles laid down in the case of Shri K.L. Asre (supra)
has been made applicable to time keepers, working in the work
charged contingency paid establishment, if time keepers and driver
in the work charged establishment are entitled to promotion under
the time bound scheme, there is no reason as to why the said
benefit be not extended to other employees constituting the same
class in the work charged and contingency paid establishment. The
policy is made applicable to driver of this establishment and the
reasons for not making the said policy applicable to other
categories of the work charged contingency paid establishment is
not indicated in the return. No reason is given as to why a different
policy is being adopted in the case of other employees in the work
charged contingency paid establishment and the benefit granted to
drivers in the said establishment is not extended to other
employees like petitioner. Respondent being a 'State' to give
similar benefit to employees similarly situated and forming a
common class. They may be justified in granting some additional
benefit to some of the employees in comparison to others, but the
justification and reasons for such a classification has to meet the
test of Article 14 of the Constitution and the decision has to be
reasonable, fair and justified by cogent reasons and relevant
consideration. Except for contending that the Policy is not
applicable to employees working in the work charged contingency
paid establishment, no justification forthcoming from the
respondents with regard to further classification among the
employees working in the work charged contingency paid
establishment with regard to implementation of the Policy-
Annexure P-3 and P-4. When the employees working in the work
charged contingency paid establishment constitute a common
class, all benefits which are extended to one set of employees
namely drivers as per the policy and the time keepers in the light
of the judgment in the case of K.L. Asre (supra), has to be granted
by the respondents to the present petitioners also. In the absence
of proper justification adopting a different policy and cogent
reason given justifying the reasonableness in the classification
and differentiation done fulfilling the requirement of Article 14 of
the Constitution, discrimination cannot be permitted. Parity in
employment is required to be maintained and, therefore, keeping
in view the circumstances and the action of the respondents in
adopting a pick and choose method violative of Article 14 of the
Constitution in the case of employees who form a homogenous
class, the action discriminatory in nature cannot be upheld by this
Court.
12. Keeping in view the aforesaid, the respondents are directed to
extend the benefit of promotion in accordance with the aforesaid
scheme to the petitioner and after evaluating his case is
accordance with the requirements of the said scheme, grant
benefits to the petitioner. In case the petitioner is found entitled
then necessary orders in this regard be passed within a period of 3
months.''
14. The order passed in Tejulal Yadav (supra) was upheld by the
Division Bench of this Court at Principal Seat in W.A.No. 966/2019.
15. It is not in dispute that the appellant has not extended the benefit in
the same department to the identically placed employees, therefore, the present
respondent is also eligible for grant of kramonnati. Moreover, in identical
situation, SLP (Civil) No. 10282/2016 has already been decided by the Apex
Court vide order dated 21.03.2023 and the following order has been passed:
''In this group of matters, all the respondents are work charged
employees. A Division Bench of Madhya Pradesh High Court
decided writ appeal No. 966/2009 which has attained finally. In
the said appeal, the High Court held as follows:
''7. The complete reading of these Rules indicates that a
contingency paid employee attaining the permanent status and a
work charged employee attaining the permanent status are treated
to be similar in all respects for the purpose of granting them
pension and revision of pay scales under the M.P.Work Charged
and Contingency Paid Employees Revision of Pay Rules, 1990 and
under the M.P. (Work Charged and Contingency Paid Employees)
Pension Rules, 1979.''
As the view taken by the High Court has attained finality and as
most of the respondents were employed in late 80s or early 90s, we
do not find any error committed by the High court when a direction
was issued to give benefit to work charged employees in terms of
the aforesaid decision. Hence, there is no merit in the special
Leave Petitions and the same are accordingly dismissed.
Pending applications also stand disposed of.''
16. Recently, this Court while dealing with similar controversy had
disposed off W.A. No. 1274/2018 relying upon the order passed in the case of
Tejulal Yadav (supra) which was later confirmed by the Division Bench of
this Court. Thereafter, the matter has traveled upto the Apex Court and attained
finality.
17. In the instant case, we have dealt with the issue of limitation and
found that appeal is time barred and thereafter, dealt with the merits of the case
as well and has arrived at conclusion that no interference is warranted in the
findings arrived at by the learned Single Judge while passing the order
impugned.
18. Accordingly, this writ appeal is hereby dismissed on the ground of
delay as well as on merit. No order as to cost.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
sh
