Madhya Pradesh High Court
Sunil Joshi vs Shri Pankaj Agrawal on 22 June, 2018
THE HIGH COURT OF MADHYA PRADESH
Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and
others)
1
Gwalior
22.6.2018
Shri B.P. Singh, learned counsel for the petitioner.
Shri R.K. Awasthi, learned counsel for the
respondents.
1. Alleging willful disobedience of order dated 30.1.2012 passed in Writ Appeal No.45/2012, petitioner has filed this petition seeking action against the respondents.
2. The writ appeal was disposed of in terms of order passed in State of M.P. and others Vs. Madan Singh Kushwah (W.A.No.1266/2010), wherein it was held:
"Before the Division Bench of Main Seat at Jabalpur, the State Government has also filed bunch of writ appeals arising out of the same issue, which have also been dismissed vide order dated 1-11-2011. In one of the Writ Appeals i.e. W.A.No.1266/2010 (State of M.P. & Others Vs. Madan Singh Kushwah), the Division Bench of this Court has held as under :-
"We find that the consideration of the THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 2 consequences flowing from the unchallenged orders of classification in the impugned order passed by the learned Single Judge is based upon a decision of the learned Single Judge of this Court in the case of State of M.P. and others Vs. Hariram and others, reported in 2008 (3) MPLJ
517. Although in that decision the case reported in Gangadhar Pillai Vs. Siemens Ltd. (supra) has not been considered, but the case of M.P. State Agro Industries Development Corporation (supra) has been considered. We do not find any such difference in the aforesaid two Supreme Court decision which would call for a departure from the view taken by the learned Single Judge in the case of Hariram and others (supra).
Normally if an employee is classified as a permanent employee against a particular post, he should be entitled to all the benefits of that post unless, as held by the Supreme Court, such benefits are excluded either by contract between the employer and employee or by operation of some law. No such contractual or legal restriction has been brought to our notice.
Whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 3 normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought into service through either of the two processes permitted by law, as permanent employees against a particular post, should be entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of" equal pay for equal work". Our view finds support from another Division Bench decision of this Court reported in the case of State of M.P. Vs. Ram Prakash (1989) JLJ 36.
For the aforementioned reasons, we do not find any good ground to interfere with the order passed by the learned Single Judge.
Accordingly, the writ appeals are dismissed."
In view of the above, the writ appeal is disposed of with a direction that if in THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 4 pursuance to the direction issued by the learned Single Judge the respondents come to the conclusion that the appellant is eligible for classification, then he would be entitled to get the benefit of regular pay- scale of the post on which he would be classified.
3. On being noticed the respondents have filed the response. It is stated that the order passed in W.A.No.45/2012 was subjected to review in a Review Petition No.177/2012 which was disposed of on 13.7.2012 in the following terms:-
"In this view of the matter, we do not find any merit in this Review Petition.
It is informed by the learned Government Advocate that similar matters are pending before the Hon'ble Supreme Court for adjudication. Copies of the orders passed by the Hon'ble Supreme Court in S.L.P.Nos.8473/2012, 3256/2012, 17998/2010, 17815/2011 and 13278/2011 have also been filed by the State along with the Review Petition. Hence, execution of the order of Division Bench would be subject to THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 5 the order that may be passed by the Hon'ble Supreme Court in similar cases.
The Review Petition is disposed of accordingly."
4. It further transpires from the pleadings and the documents brought on record vide status report filed on 22.6.2018 that a similar issue has been decided by the Hon'ble Supreme Court forming subject matter of Contempt Petition (C) No. 771/2015 in SLP (C) No.25284/2012 in the case of Ram Naresh Rawat Vs. Ashwini Ray & Ors decided on 15.12.2016, wherein Their Lordship were please to hold:
"21. It is, thus, somewhat puzzling as to whether the employee on getting the designation of 'permanent employee' can be treated as 'regular' employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as 'permanent employee' would be treated as a regular employee but it does not apepar THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 6 to be exactly that kind of situation in the instant case when we find that merely after completing six months' service an employee gets right to be treated as 'permanent employee'. Moreover, this Court has, as would be noticed now, drawn a distinction between 'permanent employee' and 'regular employee'.
22. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of Madhya Pradesh and Others Vs. Dilip Singh Patel and Others".
That was a case where similarly situated employees, who were classified as 'permanent employees' under the Standing Orders Act, were given minimum of the 3 Conc. No.891/2015 pay-scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 7 recommendations of Sixth Pay Commission which were accepted qua regular employees. This Court, though, upheld the orders of the High Court giving them the benefit of revision of pay-scale pertained to Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised sclaes and would not be entitled to any increments. It was further held that such increments would be admissible only after regularization of their services which regularization was to take placed as per seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder:
"we have heard learned counsel for the parties and perused the records. It appears that the respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such as O.A. No. 648 of 1995, O.A. No. 293 of 1991 etc. in compliance of the orders passed in such original applications, the Chief THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 8 Engineer, Yamuna Kachhar Water Resources Department, Gwalior (M.P.) (by order issued in between April.. 2004 and June, 2004 provided the minimum wages and allowances to the respondents without increment as per the Schedule of the pay scale from the date of the order of the Tribunal. It was further ordered that the regularization of the daily wages employees shall be made as per the seniority list with due 4 Conc. No.891/2015 procedure and the benefit of increment and other benefits can only be granted after the regularization as per the Rules. It was ordered that the order of the Court for benefit of minimum wages and allowances shall be .............. From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowances as per the fixed Schedule of the pay scale but without any increment. In such cases, if the pay scale is revised from time to time including the pay-scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowances as per the said revised scale, without increment. Only after regularization of their service, as per seniority and rules, they can claim the benefit of increment and other benefits."
THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 9
23. From the aforesaid, it follows that though a 'permanent employee' has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale."
5. It is also apprised by the learned counsel for the respondents that in similar Contempt Case No.891/2015, Coordinate Bench of this Court wherein one of us (A.K. Joshi, J) was a member and disposed of contempt case in terms of the decision by the Supreme Court in the case of Ram Naresh Rawat (supra). As the issue as regard to grant of pay sale after being classified as "permanent" under the Statutory Standing Order has been settled at rest with the decision in Ram Naresh Rawat (supra), we are inclined to dispose of the contempt petition in terms of order passed in Ram Naresh Rawat (supra) and direct the respondents to THE HIGH COURT OF MADHYA PRADESH Conc.No.1125/2016 (Sunil Joshi Vs. Pankaj Agrawal and others) 10 consider and settle the claim of the petitioner in terms of decision rendered by the Supreme Court in Ram Naresh Rawat (supra) within a period of three months from the date of communication of this order.
6. Contempt Case is finally disposed of in above terms.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
Pawar/-
ASHISH PAWAR
2018.06.25 12:06:33
+05'30'