Madhya Pradesh High Court
Anil Kothari vs The State Of Madhya Pradesh ... on 27 June, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 27 th OF JUNE, 2023
WRIT PETITION No. 13668 of 2023
BETWEEN:-
ANIL KOTHARI S/O SHRI KEDARNATH KOTHARI, AGED
ABOUT 55 YEARS, OCCUPATION: SERVICE (DAILY
WAGER) I-16 N.V.D.A. COLONY BADWAHA ROAD,
MANDDESHWAR DISTRICT KHARGONE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI MADHUSUDAN DWIVEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH NARMADA
VALLEY DEVELOPMENT DEPARTMENT
THROUGH PRINCIPAL SECRETARY VALLABH
BHAWAN, DISTRICT BHOPAL. (MADHYA
PRADESH)
2. NARMADA VALLEY DEPARTMENT AUTHORITY
THROUGH ITS MEMEBER (ENVIRONMENT AND
FOREST) NARMADA BHAVAN, 59 ARERA HILLS
BHOPAL (MADHYA PRADESH)
3. COMMISSIONER (ADMINISTRATION) NARMADA
VALLEY DEVELOPMENT AUTHORITY NARMADA
BHAWAN, 59 ARERA HILLS, BHOPAL (MADHYA
PRADESH)
4. EXECUTIVE ENGINEER NARMADA VALLEY
DEVELOPMENT DEPARTMENT DIVISION NO. 20,
MANDLESHWAR, DIST. KHARGONE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI BHUWAN DESHMUKH - G.A FOR RESPONDENT NO.1 & SHRI
VIVEK PATWA - G.A. FOR RESPONDENT NO.2 TO 4)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
2
following:
ORDER
The petitioner has filed the present petition for extending the benefit of
7th Pay Commission.
2. The petitioner is working as daily rated employee of the Narmada
Valley Development Department (NVDA). That, earlier the benefit of 6th Pay
Commission was granted to some of the daily rated employees, but some of the
similarly situated persons were not granted the benefit of pay scale of 6th Pay
Commission. One of such employees has filed a writ petition bearing W.P.
No.5332/2010(Kishorilal Prajapati & Ors. Vs. State of M.P. & Ors. ). The
said writ petition was allowed vide order dated 3/07/2012 and the order passed
by the learned Single Judge was confirmed in the writ petition as well as in the
SLP filed by the State Government. Thereafter, the benefit of 6th Pay Scale was
granted to the employees.
3. The petitiones being similarly situated has also filed writ petition
before this Court and the petition was also allowed in terms of order which is
passed in the W.P. No.2510/2018 case of Kishorilal Prajapat (supra). That,
thereafter, the 7th Pay Commission was made applicable to the State
Government employees w.e.f. 1/01/2016. The petitioner submits that as the
benefit of 5th and 6th Pay Scale was extended to him at par with the
Government employees, therefore, he is also entitled to get the benefit of 7th
Pay Scale.
4. Learned counsel for the petitioner submits that the petitioner is also
performing the same duty like a regular employee and, therefore, the said action
of the respondents amounts to discrimination.
5. The respondents have filed their reply and submits that the petitioner
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Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
is daily wager employees and, therefore, the M.P. Pay Revision Rules, 2017 (in
short ... "the Rules of 2017") by which the pay scale of regular employees of
State Government was revised, are not applicable to the petitioner as he is not
the regular employee of the State Government. Rule 1(B) (i) (vii) of the Rules of
2017 makes it clear that the same are not applicable on the petitioner and,
therefore, the petitioner is not entitled for the benefit of pay revision. It is further
stated that the benefit of minimum pay scale as per the pay scale of 6th Pay
Commission has been given to the petitioner in compliance of the order passed
by this Court, which cannot be extended for grant of benefit of revision of pay
scale on the basis of recommendation of 7th Pay Commission. The petitioner
is not regular employees of the State Government nor he is appointed against
any vacant post following the due process of recruitment and, thus, he is not
entitled for revision of pay scale as no pay scale is applicable to him. In the light
of the aforesaid, learned counsel for the respondents submits that the petition
deserves to be dismissed.
6. The petitioner has e filed a rejoinder and in the said rejoinder it has
been stated that at the time of consideration of W.P. No.5332/2010(S)
(Kishorilal Prajapati & Ors. Vs. State of M.P. & Ors.), the respondents have
raised a similar stand regarding Rules of 2009 stating that as the petitioner is
daily wager employee, therefore, he is not entitled to get the benefit of 6th Pay
Commission. Therefore, after considering the similar Rules of 2009, this Court
has granted benefit of 6th Pay Commission to the petitioners, therefore,
certainly he is entitled to get the benefit of 7th Pay Commission also.
7. Heard learned counsel for the parties and perused the record.
8. In the present case, the petitioner is the daily wages employee of the
NVDA and he is getting minimum of the pay scale. The petitioner was not
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Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
granted the benefit of 6th Pay Commission as has been granted to the State
Government employees, therefore, writ petition was filed before this Court.
Those petition was allowed and the respondents were directed to grant the
benefit of Pay Scale on the recommendation of 6th Pay Commission to the
petitioner.
9. That, thereafter, the State Government has made applicable the
recommendation of 7th Pay Commission to its employees. However, the said
benefit has not been extended to the petitioner, therefore, the present writ
petition has been filed.
10. The respondents in their reply has stated that the Rules of 2017 are
not applicable to the petitioner as he is not the regular employee of the State
Government. The said arguments were raised by the petitioner in the judgment
o f Kishorilal Prajapati & Ors (supra), passed by this Court, which was
maintained upto the Supreme Court. In Para- 6 and 7 of the said judgment, this
Court has held as under :-
"6. The principle of classification of an employee on a post, as
is envisaged in the Industrial Law is very simple. If an
employee is said to have remained working in one calender
year for 240 days or more on one post, he is said to be entitled
for classification on the said post. If the persons like
petitioners are continuing, it is very clear that the work is
available. If the work is available and the posts are already
sanctioned, the petitioners are said to be classified on the said
post on account of their continuous long working for 20 or
more years. Thus, the stand taken by the respondents that the
petitioners would not be entitled to minimum of the pay scale of
the post against which they are working, cannot be accepted.
The factual aspect is distinguishable than
that of the facts in the case of M.P Urja Vikas Nigam Ltd.
(supra). The very same principle would not be attracted in the
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present case.
Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
7. If the persons like petitioners were granted the benefit of
minimum of the pay scale with the allowances, applicable on
the post on which they are working, how could it be said that
they will not be entitled to the revision of the pay scale if the
pay of the said post is revised by the State Government
accepting the recommendation of the Sixth Pay Commission.
The order of the Tribunal is clear. It nowhere says that the
persons like petitioners would be entitled to only minimum of
the pay scale as is prevalent on the date and they will never get
benefit of revision of the pay scale. The only rider put by the
Tribunal is that the petitioners would not get the increments of
pay. This being so, the respondents are bound to extend the
benefit of revision of the pay, applicable to the post on which
the petitioners are working. Consequently, the petitioners will
get the benefit of minimum of the revised pay scale and
allowances of the posts against which they are working, as has
been accepted by the State Government on the basis of
recommendation of the Sixth Pay Commission. The same would
be applicable to the persons like petitioners from the date the
revision of pay scale has been done. The admissible amount is
to be calculated and is to be paid to the petitioners."
11. That, in the present case also the petitioner is working for 20 or more
than 20 years and he is continuing on his post which shows that the work is
available and the posts are already sanctioned. The petitioner is performing his
work as that of regular employees and, therefore, the same analogy which has
been made applicable by this Court in the case of Kishorilal Prajapati (supra)
would be applicable in the present case also. Thus, the action of the
respondents in not extending the benefit of 7th Pay Commission to the
employees is per se illegal and discriminatory.
12. Resultantly, the writ petition is allowed. The respondents are directed
to grant the benefit of revision of pay scale on the recommendation of 7th Pay
Commission to the petitioner and the respondents are further directed to pay
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
arrears of salary to the petitioner within a period of three months from the date
of certified copy of the order passed today.
13. With the aforesaid directions, the writ petition stands disposed of.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 27-06-2023
17:50:08
