Madhya Pradesh High Court

Girdhari Lal Panchal vs Public Works Department on 19 October, 2023

Author: Sushrut Arvind Dharmadhikari

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         IN       THE          HIGH COURT                        OF MADHYA
                                            PRADESH
                                     AT I N D O R E
                                            BEFORE
               HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                        DHARMADHIKARI
                           ON THE 19th OCTOBER, 2023


                        WRIT PETITION No. 16882 of 2018

BETWEEN:-
GIRDHARI LAL PANCHAL S/O SHRI CHAMPA LAL PANCHAL H.NO.79
GALI NO.3 P AND T COLONY LAXMAN PURA RATLAM (MADHYA
PRADESH)
                                                                                .....PETITIONER
(SHRI KHEN CHAND RAIKWAR, LEARNED COUNSEL FOR THE
PETITIONER)

AND
   PUBLIC WORKS DEPARTMENT PRINCIPAL SECRETARY VALLABH
1.
   BHAWAN (MADHYA PRADESH)
   CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, P.W.D. NIRMAN
2.
   BHAWAN, ARERA HILLS, (MADHYA PRADESH)
   EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, P.W.D.
3.
   OFFICE, (MADHYA PRADESH)
   JOINT DIRECTOR TREASURY AND ACCOUNTS BHAGAT PURI,
4.
   UJJAIN (MADHYA PRADESH)
                                                                            .....RESPONDENTS
(   SHRI  MUKESH                      PARWAL.GOVT.               ADVOCATE             FOR         THE
RESPONDENT/STATE)
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        Reserved on                     :     23.08.2023
       Pronounced on                    :     19.10.2023
-----------------------------------------------------------------------------------------
        This petition having been heard and reserved for orders coming
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on        for pronouncement this day,                                  Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
........................................................................................................................
                                                    ORDER

The present writ petition has been filed under Article 226 of the Constitution of India being aggrieved by the order dated 03.03.2018 passed by the respondent no.2 declining him to extend the benefit of 2 nd kramnonnati after his promotion on the post of Work Assistant in PWD department, Ratlam.

2. Brief facts of the was are that petitioner was appointed on the post of Time Keeper by the Executive Engineer in the PWD Department, Ratlam in the fixed pay of Rs. 75/-. He was promoted on the post of Work Assistant in the pay scale Rs. 70-4-140-5-160 plus D.A. vide order dated 11.11.1976. The petitioner was retired on 31.10.2002. The petitioner has submitted representation to the respondents for extending him the benefit of 2 nd Kramonnati for working continuously on the promotional post of Work Assistant for more than 12 years and the said representation is pending consideration. Hence, the present petition is preferred.

3. Learned counsel for the petitioner submitted that petitioner has completed 12 years of service on the post of Work Assistant and, therefore, he is entitled for 2 nd Krammonati in the light o the judgment passed by this Court in the case of Tejulal Yadav Vs. State of M.P. reported in 2010 MPLSR 40. Similarly situated work charge employee and drivers have also been granted the benefit of Krammonati but time keeper has been denied the said benefit which is discriminatory and the same is against Article 14 of the Constitution of India. Hence, petition

filed by the petitioner may be allowed and respondents be directed to extend him the benefit of 2 nd Krammnonati in the light of judgment passed in the case of Tejulal Yadav(supra)

4. On the other hand, learned counsel for the respondent/State submitted that the petitioner is claiming the benefit of 2 nd Krammnonati after his promotion on the post of Work Assistant in PWD, Ratlam. He got retired on 31.10.2002 and preferred the petition in the year 2018 i.e. after 16 years of his retirement. Therefore, the petition is hopelessly barred by limitation and deserves to be dismissed on the ground of limitation. Moreso, he was initially appointed on daily wage in the year 1961 and was taken in work charge and contingency establishment on 11.11.1976 as Work Charge Time Keeper. At that particular point of time, there was no policy of granting krammonati to the work charge and contingency establishment employees. Since, the petitioner was retired in the year 2002, he has no right to claim the said benefit after 16 years of his retirement. Even the circular dated 21.09.2016 is prospective in nature and, therefore, it will not be applicable to the case in hand Hence, the petition deserves to be dismissed.

5. Heard, learned counsel for the parties and perused the record.

6. This Court, in case of Tejulal Yadav (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.''

7. 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.

8. It is not in dispute that the respondents have not extended the benefits in the same department to the identically placed employees, therefore, the present petitioner 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.''

9. In view of the above, the controversy involved has already been concluded till the Apex Court, therefore, the present petition stands allowed. The petitioner shall be entitled for the benefits flowing out of the judgment passed in the case of Tejulal Yadav(supra). The respondents are directed to grant all the consequential benefits positively within a period of three months from the date of receipt of certified copy of this order.