Madhya Pradesh High Court
Rajkumar Mahar vs State Of M.P. on 22 March, 2025
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1 WP-24178-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 22nd OF MARCH, 2025
WRIT PETITION No. 24178 of 2019
RAJKUMAR MAHAR AND OTHERS
Versus
STATE OF M.P. AND OTHERS
Appearance:
Ms. Malti Dadariya - Advocate for the petitioners.
Shri Deepak Sahu - PL appearing on behalf of respondent/State.
ORDER
The present petition has been filed seeking following reliefs:-
"(i) Hon'ble Court may kindly be pleased to issue a writ
in the nature of mandamus directing the to treat the as
regular in the further directing therein that the scale of
pay may be released and paid W.e.f the date they three
years of service from the date of their
initial appointment paying arrears alongwith interest
12% per annum thereon
(ii) The respondents may further be directed to offer
them appointment on other regular Class IV post as on
regular basis
(iii) All other benefit available to regular Regular
Sweeper/Regular Class IV employees in the
department may also be directed to the given to the
petitioners.
(iv) Any other writ/order/direction, which this
Honble Court deems fit and proper in the facts
and Circumstances of the case, may also kindly be
granted in the interest of justice"
2. Learned counsel for the petitioner at the outset submits that the
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petitioners were appointed vide order dated 08.02.2006 (Annexure-P/1)
along with eight other employees one of which was one Rakesh Kumar
Charmkar.
3. It is the case of the petitioners that the said employee Rakesh
Kumar Charmkar had filed W.P No.10434/2024 before this Court and this
Court holding that the case is covered by earlier judgement of this Court in
W.P No.9827/2012 (Ram Naresh Prajapati Vs. State of M.P and others)
which has been affirmed up to the Hon'ble Apex Court, allowed the petition
and granted the relief. The Coordinate Bench in W.P No.10434/2018 has
passed the following order:-
"In this petition filed under Article 226 of the
Constitution, the petitioner has prayed for following
reliefs:
"1. Hon'ble Court may kindly be
pleased to issue a writ in the nature
of mandamus, directing the
respondents to conduct screaming
for the purpose of appointing the
petitioners on the regular class 4
post and offering appointment on
regular class 4 post giving them
regular scale of pay as per rule
w.e.f. from the same date when
others are given the benefit or wef
the date as respondents deem, fit
and proper or the petitioners be
treated as sweeper instead of part
time sweeper and they be given
regular scale of pay of sweeper
w.ef. the date they complete three
years of service from the date of
their initial appointment, as shown
in the chart in facts of the case.
2. Respondents may further be
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directed to appears of salary
alongwith interest @ 12% p.a.
thereon.
3 Any other writ, order or
direction, which this Hon'ble Court
deems, fit and proper in the facts
and circumstances of the case, may
also kindly be passed, in the
interest of justice."
2. Ms. Malti Dadariya, learned counsel for the petitioner
submits that pursuant to an advertisement issued under
Special Recruitment Drive, the petitioners submitted
their candidature and were subjected to a selection
process Thereafter, by various orders cumulatively filed
as Annexure P/), they were appointed as Part Time
Sweeper. Learned counsel for the petitioners submits
that thereafter petitioners are working continuously as
Sweeper. It is the specific case of the petitioners that
although in their appointment orders, it is mentioned
that they are appointed as Part Time Daily Rated
Sweeper, the fact remains, they were selected pursuant
to a regular selection method and were appointed
against clear and vacant posts of Sweepers. They we
performing the same nature of duties which are being
performed by a regular Sweeper. Their salary is drawn
from contingency fund of the Government. Since
petitioners are appointed in accordance with law on a
regular post and performed the regular nature of duties,
they are entitled to get same pay which is directed to be
granted by GAD Circular dated 10.5.1984. At any rate,
petitioners are entitled to get the pay-scale as per the
circular dated 7.10.2016 Annexure P/4, Leamed counsel
for the petitioners placed heavy reliance on the order of
this Court passed in WP No.9827/2012 (Ram Naresh
Prajapati and others vs. State of MP and others). It is
pointed out that this order got stamp of approval in WA
No. 197/2016 which was dismissed on merits on
21.3.2017. The State unsuccessfully assailed these
orders before the Apex Court. Thus, respondents are not
justified in depriving the petitioners from fruits of said
circular.
3. The prayer is opposed by Shri J.K. Pillai on the
strength of return and additional return.
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4. No other point is pressed by learned counsel for the
parties.
5. I have heard the leamed counsel for the parties and
perused the record
6. A plain reading of appointment orders show that the
petitioners were recruited pursuant to a Special
Recruitment Drive. This is a matter of common
knowledge that such drive is being initiated when
certain numbers of posts are lving vacant and
Government intends to fill up those posts as a special
measure expeditiously. Thus, I find substance in the
ument of Ms. Dadariya that it is difficult to accept that
petitioners' appointments were made without there
being any sanctioned posts. The categorical averment of
petition that petitioners arc working against clear and
vacant post is not specifically denied in the return. The
respondents have not chosen to file para-wise return and
rebut the averments of para 6.1 and 6.3 of the petition.
The Apex Court in Naseem Bano vs. State of U.P.,
(1993) 4 SCC 46 has opined that if categorical
averments of petition go unrebuted, said averments of
petition can be presumed to be admitted.
7. Indisputably, in WP No.9827/2012 also, the
petitioners/Sweepers claim was contested by the
Government by contending that their appointment was
on part-time basis or on temporary/contractual basis
and; therefore, they cannot be given benefit of regular
pay-scale. This argument could not find favour and this
Court directed to grant the benefit of regular pay-scale
alongwith the arrears from the date they completed
three years of service from the said circular. In WP
No.197/2016 (State of M.P. and others vs. Ram Naresh
Prajapati and others), this Court opined as under:
"6. In view of the said fact, we find that the
writ petitioners have been rightly found
entitled for the revized pay scale after
treating them as temporary employees. Such
is the view taken by this Court in W.A. No.
226/2016 (State of M.P. and others. Naresh
Kumar Pandey and another) decided on
09/02.2017 wherein it has been held thus:-
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"7. A perusal of the aforesaid provaion goes
to show that all such employees who are
appointed by the Collector and are paid a
foed sulary (Nishchit Vesan), they are
entitled to the benefit of revision of pay as
contained in Annexure thereto. That being
the stipulation in the circular, merely because
the employees are not appointed in a
particular pay scale, the benefit of the circular
could not be denied as the circular speaks
about its applicability to the employees
appointed by the Collector on a fixed salary
and if an employee receiving a fixed salary i
also entitled to the revised pay scale, we find
no error in the order passed by the learned
Writ Court warranting consideration"
7. In view of the aforesaid judgment, we do
not find any merit in the present appeal. The
same is dismissed."
Indisputably, these orders of this Court were not
interfered with by Apex Court.
8. As per the circular dated 10.5.1984, the petitioners
are entitled to get the benefit after completion of three
years. The respondents have taken the same stand in the
present petition that they are part-time employees. The
similar stand taken by them and reproduced in the
second page of order of Ram Naresh Prajapati (Supra)
was not accepted by this Court.
9. Considering the aforesaid, in my view, the present
petitioners are similarly situated qua Ram Naresh
Prajapati and are entitled to get similar benefit. Apart
from this, the respondents have even extended the
benefit of pay-scale to daily rated employes by order
dated 7.10.2016. Even this benefit was not extended by
the respondents in favour of the petitioners.
10. The petitioners have successfully established that
they are actually not Part-time Sworper. They were
selected pursuant to a selection process against vacant
posts. In this view of the matter, I deem it proper to
direct the respondents to extend the benefit of judgment
of Ram Naresh Prajapati (Supra) in favour of the
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petitioners. It is apposite to remember a passage from
the judgment of Supreme Court in the case of Inder Pal
Yadav & Others vs. Union of India & Others 1985 (2)
SCC 648 which reads as under:
"Therefore, those who could not come to the
court need not be at a comparative
disadvantage to those who rushed in here. If
they are otherwise similarly they are entitled
to similar treatment if not by anyone else at
the hands of this Court"
(Emphasis supplied)
11. In the light of aforesaid, the petition deserves to be
allowed. Accordingly. the respondents are directed to
grant the benefit of regular pay-scale alongwith the
arrears to the petitioners after completion of three years
from the date of their appointment as per the circular
dated 10.5.1984. The aforesaid exercise shall be
completed within a period of three months from the date
of production of certified copy of this order. Since no
other relief is pressed, the petition is allowed to the
extent indicated above."
4. The aforesaid order has recently been affirmed by Hon'ble Apex
Court in SLP (Civil No.8613-8614 of 2022) on 31.01.2025 by setting aside
the order of Division Bench and restoring the order of Coordinate Bench in
W.P No.10434/2018.
5. Though, learned counsel for the State has vehemently relied on
certain other orders as filed along with their reply but the fact remains that
the person who was appointed along with the petitioner and is part of the
same order of appointment Annexure-P/1, his case has been allowed by the
Hon'ble Apex Court in in SLP (Civil No.8613-8614 of 2022).
6. In view of the above, this petition is allowed in similar terms as W.P
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No.10434/2018. Let necessary benefits be extended to the petitioner within a
period of three months from the date of receipt of certified copy of this
order.
7. With the aforesaid, this petition is allowed and disposed of.
(VIVEK JAIN)
JUDGE
Prar
