Ramdulari vs Public Works Department
2024 Latest Caselaw 39 MP

Madhya Pradesh High Court

Ramdulari vs Public Works Department on 2 January, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                                     -1-


                           IN THE       HIGH COURT OF MADHYA PRADESH
                                              AT I N D O R E
                                                     BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK RUSIA
                                          ON THE 2nd OF JANUARY, 2024
                                          WRIT PETITION No. 27215 of 2019

                           BETWEEN:-
                              RAMDULARI D/O HAMIRA, AGED ABOUT 60 YEARS, R/O 162/3, JUNA
                           1. RISALA GALI NO.3, NEAR GANESH MANDIR INDORE (MADHYA
                              PRADESH)

                              BHURIBAI S/O MOOLCHAND, AGED ABOUT 60 YEARS, R/O 982,
                           2. PANCHAM KI PHEL, INDORE (MADHYA PRADESH)

                              DASHRATH S/O PARAG, AGED ABOUT 53 YEARS, R/O 1, AJAY BAUG
                           3. COLONY, MUSAKHEDI ROAD, INDORE (MADHYA PRADESH)

                              SITARAM S/O BABULAL, AGED ABOUT 58 YEARS, R/O PWD OFFICE
                           4. COMPOUND, MYH INDORE (MADHYA PRADESH)

                              UMESH S/O GULAB SINGH, AGED ABOUT 55 YEARS, R/O 480, ADIVASI
                           5. BHIL COLONY, MUSAKHEDI, INDORE (MADHYA PRADESH)

                              BHAGWATI RAMCHANDRA, AGED ABOUT 43 YEARS, R/O 719,
                           6. GOVIND COLONY, INDORE (MADHYA PRADESH)

                              RASHEED S/O MOHD. KHAN, AGED ABOUT 64 YEARS, R/O KILA
                           7. MAIDAN, INDORE (MADHYA PRADESH)

                              PARMESHWAR S/O TRIYAMBAK RAO, AGED ABOUT 60 YEARS, R/O
                           8. 103 KANDILUPRA, INDORE (MADHYA PRADESH)

                              SHANTI BAI W/O JAGDISH, AGED ABOUT 60 YEARS, R/O 1, AJAY
                           9. BAUG COLONY, MUSAKHEDI ROAD, INDORE (MADHYA PRADESH)

                               LATE GANGARAM S/O GOVIND THROUGH KESHARBAI W/O LATE
                           10. GANGARAM, AGED ABOUT 68 YEARS, R/O 9, SUBHASH COLONY
                               BANGANGA INDORE (MADHYA PRADESH)




Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 05-01-2024
17:22:32
                                                       -2-


                               LATE SHAEEF S/O MOHD. KHAN THROUGH ISA BI W/O LATE
                           11. SHAREEF, AGED ABOUT 65 YEARS, R/O PWD QUARTERS, KILA
                               MAIDAN, INDORE (MADHYA PRADESH)

                               LATE TEKCHAND S/O NANURAM THR PHUL KUMARI W/O LATE
                           12. TEKCHAND, R/O 1624 DWARIKAPURI, INDORE (MADHYA PRADESH)

                               SARJU BAI W/O BALLA, AGED ABOUT 65 YEARS, R/O 889, GALI NO. 7,
                           13. BHAGIRATHPURA, INDORE (MADHYA PRADESH)

                               VITTHAL S/O LAXMAN, AGED ABOUT 64 YEARS, R/O 185,
                           14. VENKATESH VIHAR, AERODRUM ROAD, INDORE (MADHYA
                               PRADESH)

                               LATE BETIBAI D/W/O PARMANAND THROUGH MANOJ S/O LATE
                           15. BETIBAI, AGED ABOUT 39 YEARS, R/O 39G, LAL MAKAN, KACCHI
                               MOHALLA, INDORE (MADHYA PRADESH)

                               CHETAN S/O ONKARLAL, AGED ABOUT 57 YEARS, R/O 46,
                           16. MAHAWAR NAGAR, ANNAPURNA ROAD, INDORE (MADHYA
                               PRADESH)

                               MIZAJILAL S/O PRITAM LAL, AGED ABOUT 59 YEARS, 369-F, RAJ
                           17. NAGAR, INDORE (MADHYA PRADESH)

                               GOPAL S/O BHAGATJI, AGED ABOUT 62 YEARS, R/O BRAHMA BAUG,
                           18. INDORE (MADHYA PRADESH)

                               KHEMCHAND S/O ONKARLAL, AGED ABOUT 61 YEARS, R/O 46,
                           19. MAHAWAR NAGAR, ANNAPURNA ROAD, INDORE (MADHYA
                               PRADESH)

                               INDUBAI W/O BAU SAHEB, AGED ABOUT 64 YEARS, R/O SHIVAJI
                           20. NAGAR, MALWA MILL, INDORE (MADHYA PRADESH)

                               LATE DINESH S/O PANNALAL HADA, THROUGH NAVEEN HADA, R/O
                           21. INDORE (MADHYA PRADESH)

                               DINESH S/O PANNALAL, AGED ABOUT 54 YEARS, R/O 236, KASRAVAD
                           22. KHURD, KHANDWA ROAD, INDORE (MADHYA PRADESH)

                               BABULAL S/O RAJARAM, AGED ABOUT 62 YEARS, R/O 195, BAJRANG
                           23. NAGAR, SIRPUR, INDORE (MADHYA PRADESH)




Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 05-01-2024
17:22:32
                                                        -3-


                                 RAJU S/O MADHAV RAO, AGED ABOUT 49 YEARS, R/O 143, SAIBABA
                           24.
                                 NAGAR, PHOOTI KHOTI, INDORE (MADHYA PRADESH)
                                 SITARAM S/O PANNALAL, AGED ABOUT 54 YEARS, R/O 237,
                           25.
                                 KASRAVAD KHURD, KHANDWA ROAD, INDORE (MADHYA PRADESH)
                                 MADHU BAI W/O HARISHCHAND, AGED ABOUT 49 YEARS, R/O 249,
                           26.
                                 DEO NAGAR HARIJAN COLONY, INDORE (MADHYA PRADESH)
                                 BALKISHAN S/O RAMGOPAL, AGED ABOUT 52 YEARS, R/O 41, MOG
                           27.
                                 LINE NEAR PWD OFFICE MAIN ROAD INDORE (MADHYA PRADESH)
                               RATIBAI W/O JANKIRAM, AGED ABOUT 59 YEARS, R/O BHAGIRATH
                           28. PURA, INDORE (MADHYA PRADESH)

                               SANTOSH S/O AMARLAL, AGED ABOUT 48 YEARS, R/O 20/1,
                           29. BAKASHIBAGH COLONY INDORE (MADHYA PRADESH)

                               LATE SURESH S/O RANGAJI THROUGH MAMTABAI W/O SURESH,
                           30. AGED ABOUT 36 YEARS, R/O BHAGIRATHPURA, INDORE (MADHYA
                               PRADESH)

                               MANOJ S/O TUKARAM, AGED ABOUT 51 YEARS, R/O 224, RISHI
                           31. VIHAR, INDORE (MADHYA PRADESH)

                               LATE RAGHUNATH S/O NARAYAN THROUGH SHYAM GAWDE, R/O
                           32. 158/7, DURGA NAGAR, INDORE (MADHYA PRADESH)

                                                                           .....PETITIONERS
                           (BY SHRI J. S. SENGAR, ADVOCATE.)

                           AND
                              PUBLIC WORKS DEPARTMENT THROUGH PRINCIPAL SECRETARY,
                           1. MANTRALAYA, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

                              UNDER SECRETARY, P.W.D., GOVT. OF M.P., MANTRALAYA, VALLABH
                           2. BHAWAN, BHOPAL (MADHYA PRADESH)

                                 CHIEF ENGINEER, P.W.D., M.P. NIRMAN BHAWAN, BHOPAL (MADHYA
                           3.
                                 PRADESH)
                              EXECUTIVE ENGINEER, P.W.D., DIVISION NO. 1, INDORE (MADHYA
                           4. PRADESH)

                                                                          .....RESPONDENTS




Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 05-01-2024
17:22:32
                                                                        -4-


                           (BY SHRI SUDHANSHU VYAS, PANEL LAWYER.)
                           --------------------------------------------------------------------------------------------------------
                           This petition coming on for orders this day, the court passed the following:

                                                                         ORDER

The petitioners have filed the present petition being aggrieved by the order dated 20.06.2019 whereby the order dated 04.03.2018 has been canceled and approval has been given to grant the benefit if circular dated 07.10.2016.

The facts of the case in short are as under:

02. The petitioners were appointed in the year 1974 as daily wagers. They approached the Labour Court by way of reference case No.72/2003 to claim classification as permanent employees. Vide award dated 18.03.2004, the Labour Court directed the Public Works Department to classify them as permanent under the Madhya Pradesh certified standing orders. In compliance with the aforesaid award, the State Government passed an order dated 09.03.2005 declaring them permanent labour on a minimum pay scale.

03. The State Government sought a reference No.32/2006 from the Labour Court in which direction was given to make payment at par with the pay scale sanctioned for the permanent employees and determine the amount of arrears. The aforesaid order was challenged by way of writ petition before this Court in which the order passed by the Labour Court dated 22.09.2006 was upheld and thereafter SLP was filed and that was dismissed vide order dated 16.01.2012. According to the petitioner, despite the order of the Supreme Court, the arrears were paid

to them up to April 2007 and thereafter, w.e.f. May 2007 it was stopped, therefore, they approached this Court by way of Writ Petition No.3056 of 2012. Vide order dated 15.05.2012, all the writ petitions were allowed and order dated 27.02.2012 was quashed and respondents/ State were directed to pay the salary and other benefit which is payable to the other regular employees of the M.P. PWD.

04. The State of Madhya Pradesh, Public Works Department challenged the aforesaid order by way of Writ Appeal No.371 of 2012.

Vide order dated 26.09.2012, all the writ appeals were partly allowed by modifying the order passed by the Single Judge to the extent that petitioners shall be entitled to monetary benefit in respect of a permanent employee, not of a regular employee. The operative part of the order is reproduced below:

In view of the aforesaid, we find that in the last Para of the order of learned Single Judge, the word 'regular employee' has been written, but from the reading of the entire order, we find that the intention of the learned Single Judge was for grant of monetary benefit in respect of the payment as of permanent employee and not of regular employee. It appears to be by way of oversight.

05. After the aforesaid order, the Executive Engineer, Division-I passed an order dated 03.03.2014 granting them the benefit of the regular pay scale to the petitioners. Meanwhile, the State Government also preferred SLP against the order dated 26.09.2012 passed in writ appeal. Vide order dated 04.04.2016 the Apex Court dismissed the SLP.

06. After five years, the respondents realized that the Executive Engineer gave a wrong interpretation of the order passed by the Division Bench of this Court and wrongly granted the benefit of the regular pay scale to the petitioners vide order dated 03.03.2014. The petitioners are

at the most entitled to the benefit of the circular dated 07.10.2016 for declaration as permanent employees in their respective category in a fixed minimum pay scale. Hence, this petition before this Court.

07. Shri J.S. Sengar, learned counsel for the petitioners submits that the Division Bench of this Court vides order dated 26.09.2012 has only held that the petitioners are entitled to monetary benefit in respect of payment as of permanent employee and at that time the benefits of the permanent employee were at par with the regular employees, therefore, the writ petitioners agreed for the aforesaid change in the order passed by the Writ Court. It is further submitted that at that time the judgment of Ramnaresh Rawat and the circular dated 07.10.2016 were not there hence, now that circular and the judgment cannot be given effect in the case of the petitioners. Although all the similarly situated daily rated were declared as permanent employees the Government used to give them benefits at par with the regular employees. At last, it is submitted by the learned counsel that without giving any opportunity for a hearing the respondents have canceled the order dated 04.03.2014. hence bad in law.

08. In support of his contention, learned counsel for the petitioners has placed reliance on the judgment passed in the case of (i) Engineer-In-Chief, P.H.E.D. and others V/s Budha Rao Magarde and others [2002 (1) M.P.L.J. 385] (ii) Rakesh S/o Parshuram Yadav and others V/s State of M.P. and others [2007 (1) M.P.L.J. 133] and, (iii) Arvind Kumar Mehra V/s State of M.P. and others [I.L.R. (2018) M.P. 1663].

09. The respondent filed the reply by submitting that the

petitioners are only entitled to the benefit of the circular dated 07.10.2016. The then Executive Engineer wrongly passed the order dated 04.03.2014 without understanding the order passed by the Writ Court. The petitioners were only entitled to a declaration of the permanent status not of the regular employee as they did not complete 25 years of service. Now, the uniform policy has been adopted by the State Government to give permanent status to all the daily rated employees in terms of a circular dated 07.10.2016. Hence, the writ petition is liable to be dismissed.

Appreciation and conclusion

10. It is correct that the Writ Court had directed the respondents to pay the salary and other benefits to the petitioner which are payable to other employees but the fact remains that the petitioners were never recruited or appointed as regular employees Before appointment no procedure was prescribed under rules was followed by the department, they were engaged as a daily rated employee. The Division Bench of this Court has modified the aforesaid order passed by the Writ Court and held that the petitioners are entitled to the monetary benefits as permanent employees. The petitioner did not challenge the aforesaid order at the relevant point in time. However, the then Executive Engineer gave a wrong interpretation of the order passed by the Writ Appellate Court and granted them the benefit of a regular pay scale. It is settled law that the estoppel does not apply against the law. There is no provision in any of the recruitment rules for giving the benefit of regular employees to the daily rated employees after conferring them the status

of permanent employees. Even the petitioners were not contingency- paid employees, therefore, the erroneous order can be recalled at any given point in time.

11. So far as the question of grant of opportunity of hearing is concerned, it is correct that no opportunity of hearing was given to the petitioners, and for that, the matter is liable to be remanded to the respondents but that would be a futile exercise because the respondents have taken their stand by way of reply in this petition and which will not be changed even if the direction is given to decide the matter afresh.

12. This Court has examined the entitlement of the petitioners on the basis of the argument raised by the petitioners and the reply filed by the respondents. In view of the order passed by the Writ Appellate Court, the then Executive Engineer passed the wrong order on 03.03.2014 which has rightly been canceled by the impugned order.

13. In view of the above, no case for interference is made out. Accordingly, the Writ Petition is dismissed. It is made clear that there shall not be any recovery from the petitioner due to the recalling of the order dated 03.03.2014, because the petitioners were not at fault. If any amount has been recovered same be returned to them.

No order as to cost.

(VIVEK RUSIA) JUDGE Divyansh