Madhya Pradesh High Court
Ramsevak Swarnkar vs The State Of Madhya Pradesh on 14 August, 2015
WP 8508/2013
Ramsewak Swarnkar
vs.
State of MP & others
1
14.08.2015
Shri Gaurav Mishra, Advocate for the
petitioner.
Shri Vishal Mishra, Deputy Advocate
General, for the respondent/State.
Shri Gaurav Mishra submits that this case is covered by the judgment of this Court passed in Writ Petition No.7540/2013 (Rajesh Kumar Jain vs. State of MP & others), decided on 13.7.2015. Hence, the petition may be disposed of in terms of the order passed in the aforesaid writ petition.
Shri Mishra has not disputed this legal position.
This Court in WP No.7540/2013 passed following order:-
"7. In the opinion of this Court, this is settled in law that once an employee is classified as permanent employee, as per provisions of Standard Standing Order, he for all practical purposes shall be treated as permanent employee. This aspect is dealt with by this Court in W.P.No. 5813/2010 (Devendra Singh WP 8508/2013 Ramsewak Swarnkar vs. State of MP & others 2 Kansana Vs. State of M.P. & Others). This Court opined as under:-
"11. The Standard Standing Orders are made under the provisions of M.P. Standard Standing Order Employment Act, 1961. The provisions of standing order are statutory in nature. This cannot be compared with any executive instructions. If any mode of induction in the standing orders is prescribed, it has to be treated as statutory mode of induction under the law. Considering the aforesaid, the order of the Labour Court was not disturbed and accordingly, the petitioner got the status of permanent employee.
12. In the aforesaid facts and circumstances, in the considered opinion of this Court, the judgment of Umadevi (supra) cannot be pressed into service in the present case. The judgment in Umadevi dealt with case of regularization under the executive instructions and does not deal with specific provisions of Standard Standing Order which are statutory in nature. In the present case, where under the statutory provision, the petitioner's rights are adjudicated and affirmed till this Court, it is no more open for the department to reopen it under the garb of WP 8508/2013 Ramsewak Swarnkar vs. State of MP & others 3 judgment of Umadevi (supra). In other words, the petitioner's right and entitlement regarding classification is settled after the dismissal of the writ appeal and, therefore, that issue cannot be permitted to be reopen by the respondents in any manner. Accordingly, the petitioner became a permanent Sub Engineer on classification pursuant to the order of the Labour Court. Apart from this, in the facts and circumstances of the petitioner's case filed before the Labour Court and as per the law prevailing he succeeded and got the benefit of classification on permanent post. This judgment has attained finality between parties inter se. This is trite that subsequent change in law will have no adverse impact on a matter which has attained finality. The earlier decision between the parties operates as res judicata. In other words, the subsequent legal position even if altered will not have the effect of reopening issue between the parties and the judgment would operate as res judicata regardless of subsequent change in the eye of law. This view is taken by Supreme court in 2013 (5) SCC 252 (Kalinga Mining Corporation v. Union of India).
14. It is gathered that the respondents had WP 8508/2013 Ramsewak Swarnkar vs. State of MP & others 4 directed various daily wager employees to undergo written examination/selection for the purpose of their regularization. This mode may be permissible under the executive instructions or as per the policy decision taken by the respondents. The pivotal question before this Court is whether this course was available for the respondents qua the petitioner, who stood classified as a permanent employee pursuant to the Court order, which got a stamp of approval till the Division Bench of this Court.
15. In the considered opinion of this Court, the said course was not permissible qua the petitioner because he stood classified as a permanent employee and once he became permanent employee under the law, there was no question of considering his case for regularization by directing him to undergo the written examination. The petitioner has a valuable legal right to enjoy the status of permanent employee from the date of his classification."
(Emphasis supplied)
8. A plain reading of aforesaid portion makes it clear that once petitioner is classified as permanent employee, his said status cannot be taken away on the basis of any executive 5 WP 8508/2013 Ramsewak Swarnkar vs. State of MP & others 5 instruction/policy. The permanent status is much superior than the status of regularization. Once petitioner is classified as permanent employee, question of his regularization does not arise. In W.A. No. 110/2011, this Court (DB) opined as under:
"whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the 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 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 WP 8508/2013 Ramsewak Swarnkar vs. State of MP & others 6 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 report 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."
9. In view of aforesaid, it is clear that once petitioner is classified as permanent employee, he is entitled to be treated as permanent employee for all purposes. Thus, his seniority has to be counted from the date of acquiring the status of classified/permanent employee. Thus, the respondents have clearly erred in inserting clause 7 in the impugned order dated 5.11.2009. The petitioner cannot be deprived from the fruits of seniority from the date he became member of service as permanent employee pursuant to order of Labour Court. Thus, clause 7 is set aside. The petitioner's seniority shall be counted from the date of classification as permanent employee.
WP 8508/2013Ramsewak Swarnkar vs. State of MP & others 7
10. Clause 8 shows that it is applicable to such employees who were appointed after 1.1.2005 and aforesaid finding shows that petitioner was classified much before the said date. Hence, 6 clause 8 has been wrongly applied in the case of petitioner. This clause in relation to petitioner is also set aside. Petitioner shall be entitled to get the benefit of pension rules which were applicable before commencement of the rules mentioned in clause 8 aforesaid.
11. Petitions are allowed. The respondents shall provide all consequential benefits to the petitioners. No cost."
In the light of aforesaid order, this petition is disposed of in terms of the order passed by this Court in Rajesh Kumar Jain (supra). The directions contained therein shall apply mutatis mutandis to this case with full force. The parties are directed to act accordingly.
Petition is disposed of.
(Sujoy Paul)
(yog) Judge