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Madhya Pradesh High Court

Uma Shankar Dwivedi vs The State Of Madhya Pradesh on 6 October, 2015

                                                      W.P. No. 3547/2015.
                                   1

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
                              JABALPUR

                        W.P. No. 3547/2015.

                         Uma Shankar Dwivedi.
                               Versus
                         State of M.P. and others.




For the appellant:                     Shri Ajit Kumar Singh, Advocate.
For the respondents no. 2 to 6:        Shri Mukesh Agrawal, Advocate.

                         *********


                               ORDER

(06/10/ 2015) Per S.K. Gangele J The grievance of the petitioner in this petition and other connected petitions is in regard to grant of benefits of 5 th and 6 th Pay Commission at par with the employees of the respondent nos. 2 to 6 company. The petitioners also claimed that they are eligible to get family pension also.

2. The facts mentioned in W.P. No. 3547/2015 are taken into consideration for deciding the case.

3. Learned counsel for the petitioner submitted that the controversy involved in this petition has already been decided by the Supreme Court vide order dated 4 th March, 2014 passed in Civil Appeal No. 4371/2008.

4. In this view of the matter with the consent of parties the petitions are heard finally and disposed off by this common order. The petitioner was appointed as Junior Engineer in Gramin Vidyut Sahakari Samiti Rewa W.P. No. 3547/2015.

(hereinafter referred to as the said society). The State Government had taken a decision in regard to abolition of Gramin Vidyut Sahakari Societies and the services of the petitioner along with other employees working in the societies were absorbed in the M.P. Electricity Board on the same terms and conditions as existing in the societies. The Board had also taken a decision that the employees would not be eligible to get deputation allowance. Copy of the order dated 18/05/2004 has been filed as Annexure P/4 along with the petition. When the petitioner was not accorded the benefits of pay scale and other benefits at par with the employees of the Board after merger of services in accordance with the terms and conditions of merger a writ petition was filed by him before this Court which was registered as W.P. No. No. 5458/2011. The Court vide order dated 04/03/2013 finally disposed of the petition. The Court considered the benefit of grant of higher pay scale to the petitioner after completing certain period of service. The Court has held as under:-

"7. Yet another aspect is required to be examined. Even when there was a direction given by the M.P. Regulatory Commission, there was a policy made by the respondent Board to take in its fold the employees of the erstwhile cooperative society on taking over of such society. Of course, this was to be done after due verification of the service records and scrutiny of case of individual. Once the order of absorption was issued, the absorbed employee also become an employee of the Board. If his previous service condition are protected, it cannot be said that he would not be entitled to get the benefit of service condition available in the Board. If this is allowed, it will mean that absorbed employees are treated a class separate than the regular establishment of the respondent/Board. In W.P. No. 3547/2015.

that way, the persons like petitioner would be discriminated against the vice of Article 14 of the Constitution of India. This could not have been permitted by any policy made by the respondents. Virtually, there was no policy made in this respect and even when the policy was made, no such restriction was placed by the respondent/Board. No steps motherly treatment was to be made to the persons like petitioner who came on absorption in the services of the Board. Once an absorption is completed, the persons like petitioner also become the part and parcel of the main stream in the establishment of the respondent/Board and as such would be entitled to the application of the service conditions of the Board except those which are saved by conditions made in order of absorption. In view of this, the order impugned issued by the respondent cannot be sustained.

8. Consequently, the impugned order dated 19.2.2011 (Annexure P-1) is hereby quashed. The respondents are directed to consider the claim of the petitioner for grant of benefit of higher pay scale on completion of requisite years of service as applied for by the petitioner in terms of the policy made by the Board and to grant the said benefit to the petitioner from the date of eligibility if found fit. The necessary action be taken within two months from the date of order. In case the petitioner is found fit, all the arrears of salary be calculated after re-fixation of pay in higher pay scale as awarded and be paid to him within the aforesaid period.

9. The writ petition is allowed to extent indicated herein above. There shall be no order as to costs.

5. When the order was not complied with a contempt petition was filed which was registered as Contempt Case No. 985/2013 and disposed of vide order 26/02/2015 with the following observations.

"For the aforesaid reason, I am not inclined to proceed in the contempt proceeding. However, the petitioner would be at liberty to assail the order passed by the respondents with regard to grant of higher pay scale as well as claim benefits of Vth & VIth Pay Commissions in appropriate proceedings in accordance with law.

W.P. No. 3547/2015.

Writ the aforesaid liberty, the contempt petition stands disposed of.

C.C.as per rules."

6. In accordance with liberty granted to the petitioner in the contempt petition, petitioner filed the present petition in regard to grant of benefit of fifth and sixth pay commission and also family pension. It is pleaded by the petitioner that after absorption, the petitioner became the employee of respondent no. 2 company and he is eligible to get the benefits at par with the employees of the respondent no. 2 company in regard to grant of salary in accordance with recommendation of fifth and sixth pay commission.

7. The respondents no. 2 to 6 in their reply pleaded that the case of the petitioner was considered by this Court while deciding W.P. No. 5458/2011 and the court granted relief of higher pay scale, hence the petition of the petitioner is not maintainable on the principle of res- judicata. It is further pleaded that the petitioner filed a review petition before this court seeking review of the order dated 04/04/2013 passed in W.P. No. 5458/2011 that was dismissed by this Court.

8. Learned counsel for the petitioner has contended that after merger of services of the petitioner with the respondent no. 2 company, the petitioner is eligible to get the salary of the post on which his services were merged at par with the employees of the respondent no. 2 company, he cannot be discriminated in the matter of payment of salary. He is performing the same work as being performed W.P. No. 3547/2015.

by the employees of the respondent no. 2 company. Learned counsel has further contended that the controversy has already been decided by the Supreme Court in a case Civil Appeal No. 4371/2008. Learned counsel has also contended that in view of the liberty granted by this Court in contempt petition, the relief claimed by the petitioner cannot be denied on the principle of res-judicata.

9. Learned counsel appearing on behalf of the respondent nos. 2 to 6 has contended that the petition filed by the petitioner is not maintainable on the principle of res-judicata because in earlier round of litigation, the same relief claimed by the petitioner has been denied to him. It is further contended by the counsel that in accordance with terms and conditions of the merger, the petitioner is not eligible to get salary at par with the employees of the respondent company.

10. The question in regard to res-judicata has to be answered first. It is admitted fact that earlier the petitioner filed a writ petition and the aforesaid petition was disposed of vide order dated 04/03/2013, the writ court quashed the order dated 19/02/2011 and directed the respondent to consider the claim of the petitioner for grant of higher pay scale. There was no implied denial by the court in the order in regard to the benefit to the petitioner of fifth and sixth pay commission neither there was adjudication on this point. In contempt proceeding, the court vide order dated 26/02/2015 granted liberty to W.P. No. 3547/2015.

the petitioner to assail the order passed by the respondent in regard to grant of higher pay scale as well as benefits of fifth and sixth pay commission. When the question for grant of pay and benefits in accordance with fifth and sixth pay commission to the petitioner was left open by the Court in contempt proceeding vide order dated 26/02/2015 passed in contempt case no. 985/2013, in my opinion, the present petition cannot be dismissed on the ground of res- judicata, the arguments advanced by the counsel for respondent no. 2 to 6 in this regard are hereby rejected.

11. In regard to merits of the claim of the petitioner. The petitioner was working earlier in a society, the government had taken a decision to abolish the society and thereafter, the services of the regular employees were merged with M.P. State Electricity Board.

12. The Supreme Court has considered the principle of merger in Civil Appeal No. 4371/2008 a case filed by Mr. Panchraj Tiwari, the question involved in the aforesaid case was that whether on integration/merger/ amalgamation, it is permissible to have complete denial of promotion forever in the integrated service. The Court observed as under:-

3.The principles of merger were clarified by the MPSEB after prolonged correspondence as per Annexure P-12 dated 15.06.2004. For the purpose of ready reference, we shall extract the contents:

"Please refer to this office order cited under reference. It is requested to issue necessary orders for absorption of employees of REC societies falling under your area of jurisdiction on the same terms & conditions of the societies. The terms & conditions of the societies may be obtained from DE (STC), Jabalpur.

W.P. No. 3547/2015.

Further other terms & conditions of which employees can be absorbed:-

1. The regular employees of the above societies shall be taken over on the same terms & conditions as existing in the Society except that no deputation allowance shall be paid .

2. Their pay scale will be the same which they were getting before the absorption .

3. The above employees may not be transferred out of the circle concerned, so that no anomaly arises.

4. Their age of superannuation will be the same as applicable in the societies.

5. Pension/gratuity will be payable to the employees absorbed in the Board as per the rules/regulation of the concerned society.

6. Their designation will be maintained as it was in the society."

(Emphasis supplied)

4. The principles of absorption as extracted above would clearly show that the employees of the society have been taken over and absorbed in the MPSEB. However, their pay- scale on the date of absorption was protected, their designation was maintained as it was in the society at the time of absorption and the age of superannuation, pension and gratuity of such employees were to be governed by the rules/bylaws of the society concerned.

13. In the aforesaid decision, the Apex Court has clearly observed that the pay scale of the employee on the date of absorption was protected and the employees were merged in the services of MPSEB the Supreme Court further observed that integration/merger of services means creation of a homogenous service and the principle of equivalence is to be followed while absorbing the employees, to the extent possible. The Supreme Court further observed in paragraphs 8, 15, 17, 19 & 20 as W.P. No. 3547/2015.

under:-

"8. Once a service is merged with another service, the merged service gets its birth in the integrated service and loses its original identity. There cannot be a situation, where even after merger, absorption or integration, such services which were merged or absorbed, still retain their original status. If so, it is not an absorption or merger or integration, it will only be a working arrangement without any functional integration."

15. It is open to the authority concerned to lay down equitable principles with regard to fixation of seniority in the merged cadre. Once a service gets merged with another service, the employee concerned has a right to get positioned appropriately in the merged service. That is the plain meaning of 'absorption'. The MPSEB, having absorbed the appellant and other employees, cannot maintain a stand that even after absorption they will retain a distinct identity in the equated cadre without any promotion as enjoyed by their compeers in the parent service. That is a plain infraction of the equity clause guaranteed under Articles 14 and 16 of the Constitution of India.

17. An employee has always an interest to seniority and a right to be considered for promotion. If after integration, only the chances of promotion are affected, it would have been only a case of heartburn of an individual or a few individuals which is only to be ignored, as held by this Court in Tamil Nadu Education Department Ministerial and General Subordinate Services Association and others v. State of Tamil Nadu and others[4] .

19. In the above circumstances, we set aside the judgment in appeal. The absorbed employees of the Rural Electricity Cooperative Societies, having due regard to their date of appointment/ promotion in each category in the respective societies, shall be placed with effect from the date of absorption, viz., 15.03.2002 as juniors to the junior-most employee of the Electricity Board in the respective category. Thereafter, they shall be considered for further promotions as per the rules/regulations of the MPSEB. All other principles/conditions of absorption shall remain as such. However, it is made clear that on such promotions, in the exigencies of service, the employee concerned would also be liable to be transferred out of the circle, if so required.

W.P. No. 3547/2015.

20. The appellant accordingly shall be entitled to retrospective promotions at par with and with effect from the dates on which the junior-most graduate engineer in the parent service on the date of absorption obtained such promotions. However, we make it clear that benefits till date need to be worked out only notionally.

14. The Apex court has clearly held that the MPSEB, having absorbed the appellant and other employees, cannot take a stand that even after absorption the employee will retain a distinct identity in the equated cadre without any promotion as enjoyed by his compeers in the parent service. That is a plain infraction of the equity clause guaranteed under Articles 14 and 16 of the Constitution of India.

15. The Apex Court has set-aside the judgment of the Division Bench of this Court in which it was held that the employees of the erstwhile societies after merger would not be entitled for the benefit of promotion at par with the employees of the M.P. Electricity Board. The Supreme Court further in the case of Union of India and others vs. Atul Shukla and others reported in (2014) 10 SCC 432 has held that so long as the two employees are a part of the same cadre/rank, they cannot be treated differently either for the purpose of pay and allowances or other conditions of service including the age of superannuation. In the aforesaid judgment, the Supreme Court has considered earlier judgments of the apex Court including the case of The Sate of West Bangal vs. Anwar Ali Sarkar and another reported in AIR (39) W.P. No. 3547/2015.

1952 SC 75. The Court held as under:

"16. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Articles 14 and 16 of the Constitution and laid down tests for determining the constitutional validity of a classification in a given case immediately assume importance.

These pronouncements have by now authoritatively settled that Article 14 prohibits class legislation and not reasonable classification. Decisions starting with State of West Bengal v. Anwar Ali (AIR 1952 SC 75) down to the very recent pronouncement of this Court in Dr. Subramanian Swamy v. Director, CBI and Anr. (AIR 2014 SC 2140) have extensively examined and elaborately explained that a classification passes the test of Article 14 only if

(i) there is an intelligible differentia between those grouped together and others who are kept out of the group; and (ii) There exists a nexus between the differentia and the object of the legislation."

The Supreme Court further held as under:-

"Moreover, it is common ground that Timescale Officers do not get to the higher rank only because of the length of service. For purposes of timescale promotion also the officers have to maintain the prescribed minimum standard of physical fitness, professional ability, commitment and proficiency. Rise to the next rank by timescale route it, therefore, by no means a matter of course. It is the length of service and the continued usefulness of the officer on the minimum requirements stipulated for such promotion that entitles an officer to rise to higher professional echelons. Suffice it to say that while better inter se merit would earn to an officer accelerated promotion to the Group Captain's rank and resultant seniority over Timescale Officers, who take a much longer period to reach that position, but once Timescale Officers do so they equal in all respects and cannot be dealt with differently in the matter of service conditions or benefits. Once it is conceded that the two are equal in all other respects as indeed they are, there is no real or reasonable basis for treating them to be different for purpose of age of retirement."

16. In the present case, the same principle would be applicable as applied by the supreme Court in regard to W.P. No. 3547/2015.

grant of pay, promotion and other benefits to the employees of the society after absorption in the matter of promotion. Clause of protection of pay scale of the employees of the society at the time of merger would mean that at the time of merger the pay of the petitioner and other employees would be the same as the employee was getting when he was working in the society. However, after merger the employee would be eligible to get the benefit of payment of salary and benefit in accordance of fifth and sixth pay commission according to the pay scale which was fixed at the time of merger at par with the employees of the Electricity Board and it is obligatory on the part of the board to revise the pay of the petitioner and other merged employees of the society in accordance with the provisions of fifth and sixth pay commission. This means that the employees would be eligible to get benefit of revision of pay scale in accordance with the provisions of fifth and sixth pay commission, however, their initial pay at the time of merger would be the same as they were getting when they were working in the society on the date of merger.

17. Consequently, the petition is allowed, the impugned order Annexure P/1, P/2 and P/3 are hereby quashed. It is directed that the respondents shall revise the salary of the petitioners in accordance with fifth and sixth pay commission and the petitioner shall eligible to get arrears of the salary also.

18. Petitioner has also prayed a relief in regard to grant of family pension. However, in that regard Provident W.P. No. 3547/2015.

Fund Commissioner is necessary party and the Commissioner has not made a party, the family pension is to be granted by the Commissioner, Provident Fund, hence this relief cannot be granted to the petitioner in this petition. For the aforesaid purpose petitioner is required to file independent petition or submit a representation to the Provident Fund Commissioner and that authority shall consider the same in accordance with law.

19. With the aforesaid observations, the petitions are allowed. No order as to costs.

Certified copy as per rules.

(S.K. GANGELE) JUDGE MISHRA W.P. No. 3547/2015.

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No. 3547/2015.

Uma Shankar Dwivedi.

Versus State of M.P. and others.

Post for : .10.2015 (S.K. GANGELE) JUDGE.

10.2015