Madhya Pradesh High Court
The State Of Madhya Pradesh vs Ashwani Kumar Shrivastava on 5 September, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1
W.A. No. 150/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DB: HON. SHRI JUSTICE SANJAY YADAV &
HON. SHRI JUSTICE S.A.DHARMADHIKARI
W.A. No.150/2019
State of M.P. & others
Vs.
Ashwani Kumar Shrivastava
Whether reportable :- Yes /No
_______________________________________________
Shri P.Visoriya, G.A. for the appellants/State.
Shri Devesh Sharma, Advocate for the respondent.
JUDGMENT
(Delivered on this 5th day of September, 2019) Per Justice S.A. Dharmadhikari This intra court appeal under section 2(1) of the M.P. Uchacha Nyayalya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, arises out of the order dated 28/11/2017 passed in W.P. No. 5310/2016, whereby the claim of the respondent/petitioner seeking minimum of the regular payscale for the post of Driver, as applicable from time to time, from the date of permanent classification till the date of his regularization, was directed to be considered by the competent Authority.
2. Brief facts leading to filing of this case are that the respondent was working on the post of Driver in the Public Health Engineering Department, having been appointed as a daily wager on 1/10/1988. He was classified as permanent employee w.e.f. 28/5/1989 vide order 2 W.A. No. 150/2019 dated 15/10/2004. Later on, he was regularized in the Work Charge Establishment vide order dated 1/11/2014. The respondent/petitioner in the writ petition claimed that his case was similar to that of Suresh Sharma and, accordingly,he was entitled to get the payscale as had been given to permanent employees from the date of their classification in accordance with the order dated 14/12/2011 passed in W.P. No.6515/2011. The appellants herein filed return mentioning that the respondent/petitioner was a daily wager who had been engaged without interview or competition and without availability of sanctioned post. It was their stand that a scrutiny committee was constituted in pursuance of GAD circular date 29/9/2014 and the respondent herein was regularized by considering him similar with the employees of other category. The learned Single Judge, while disposing of the writ petition, recorded the finding that in the light of Apex Court judgment in the case of Ram Naresh Rawat Vs. Ashvini Rai and others ((2017)3 SCC 436), respondent/petitioner is entitled to minimum of regular payscale without any increment. The appellants/State filed Review Petition No. 1034/2018 on the ground that the classification order of respondent was cancelled in the year 2011 and that liberty be granted to the appellants to examine the status of classification of respondent, especially in view of liberty granted by this Court in W.P. No. 2000/2015 (Kaluram Narwariya Vs. State of M.P. & others). The learned Single Judge declined the prayer and rejected the review 3 W.A. No. 150/2019 petition. Being aggrieved, the appellants have filed the present writ appeal seeking liberty to examine the permanent status of respondent and thereafter pass an appropriate order.
3. Learned counsel for the appellants pointed out that since the classification was cancelled in the year 2011, the writ Court could not have directed to pay the minimum of payscale without examining factum of classification and eligibility of respondent, as has been directed by this Court in identical situation.
4. On the other hand, learned counsel for the respondent opposed the prayer and submitted that earlier respondent had filed W.P. No.732/2012 seeking regular pay-scale and arrears of salary from the date of classification. This Court allowed the petition vide order dated 31/1/2012. Thereafter, no review petition or writ appeal was filed by the State . However, the benefit of arrears of salary from the date of classification was not extended to him. Being aggrieved, the respondent filed W.P. No. 5310/2016 seeking benefit of minimum payscale from the date of classification. This aspect was not disputed by the appellants in their return and nothing was said about cancellation of classification. The writ petition was disposed of vide order dated 28/11/2017 directing the present appellants to extend the benefit of arrears of salary from the date of classification. Being aggrieved, the appellants filed Review Petition No. 1034/2018. The 4 W.A. No. 150/2019 review petition was dismissed on the ground that once the admission is on record that there was no dispute in the mind of Authorities of the State as to factum of permanent classification of the respondent, therefore, at this stage, the order cannot be allowed to be rescinded and dismissed the review petition. Accordingly, it is prayed that the writ appeal being devoid of any substance, deserves to be dismissed.
5. Heard, learned counsel for the parties.
6. In identical situation, a co-ordinate Bench of this Court at Indore, has disposed of a bunch of writ appeals and review petitions;allowing the writ appeals in part, vide order dated 10/8/18 passed in W.A .No.693/2018 and connected matters. The relevant portion thereof reads thus:-
"17. The law on the subject is well settled in the case of Ram Naresh Rawat Vs. Ashwini Ray & Ors.(Supra). The respondents have been classified as permanent employees on 13/08/2004 and, therefore, now at this stage, after a period of 14 years we cannot grant liberty to the appellant/State to consider as to whether they have been classified as per policy framed by the State Government or whether they have been entitled for classification as permanent employees under the Rules.
18. Considering the fact that the permanent status was conferred upon employees in the Year 2004, we set aside the impugned order in part and directed the appellant to grant minimum regular pay- scale to them from the date of their classification as directed by the Hon'ble Supreme Court in Para - 23 of Ram Naresh Rawat Vs. Ashwini Ray & Ors.(Supra).
19. In the result, the W.A. No.693/2018 and other connected writ appeals are allowed in part. Consequently, R.P. 924/2018 and R.P. No.1109/2018 stands dismissed accordingly "
(Emphasis supplied)
7. The facts in hand and the point in issue are in pari materia to the 5 W.A. No. 150/2019 controversy settled by the Indore Bench by the aforesaid dictum. In the instant case also, the respondent has been classified w.e.f. 28/5/1989 vide order dated 15/10/2004. Thereafter, his classification is claimed to have been cancelled in the year 2011 and liberty is being sought to verify the permanent status of his classification. As such, we are in complete concurrence with the view taken by the Indore Bench in identical situation that now at this stage, after a period of about 15 years, liberty cannot be extended to the appellant/State to consider as to whether respondent has been classified as per policy framed by the State Government or to verify his status of classification, particularly when his classification was not challenged before the writ Court and on the contrary, there had been a categorical admission by learned Government Advocate that respondent was entitled to minimum of payscale without any increment.
8. In view of the aforesaid, no illegality or perversity is discernible in the order impugned warranting any interference. The appeal sans merit and is, accordingly, dismissed.
(SANJAY YADAV) (S.A DHARMADHIKARI)
JUDGE JUDGE
(and)
ANAND
SHRIVASTAVA
2019.09.06
14:23:53
+05'30'