Madhya Pradesh High Court
Naresh Chandra Pawar vs The State Of Madhya Pradesh on 3 April, 2019
1 W.P. No.14594/2014 and other connected matters
IN THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. W.P. No.14594/2014
Parties Name Ram Sajeevan Tiwari
vs.
State of MP and others
W.P. No.19666/2014
Ram Vilash Patel
vs.
State of MP and another
W.P. No.10719/2014
Praveen Kumar Tiwari
vs.
State of M.P. and others
W.P. No.849/2015
Ashutosh Prasad Mishra
vs.
State of MP and another
W.P. No.5898/2015
Surya Prakash Pandey
vs.
State of MP and others
W.P. No.6233/2015
Amar Singh Thakur
vs.
State of MP and others
W.P. No.6694/2015
Kanhai Prasad
vs.
State of MP and others
W.P. No.6812/2015
Nagendra Nigam
vs.
State of MP and others
W.P. No.6889/2015
Ramjiyawan Verma
vs.
State of MP and others
W.P. No.6890/2015
2 W.P. No.14594/2014 and other connected matters
Ramayan Prasad Shukla
vs.
State of MP and others
W.P. No.7010/2015
Moti Lal Verma
vs.
State of MP and others
W.P. No.7022/2015
Lalita Bai
vs.
State of MP and others
W.P. No.7029/2015
Munna Lal Sharma
vs.
State of MP and others
W.P. No.7811/2015
Rohni Prasad Mishra
vs.
State of MP and others
W.P. No.7812/2015
Vishwanth Singh
vs.
State of MP and others
W.P. No.7813/2015
Yadvendra Singh
vs.
State of MP and others
W.P. No.7814/2015
Usha Singh
vs.
State of MP and others
W.P. No.7816/2015
Darshan Lal Sharma
vs.
State of MP and others
W.P. No.7817/2015
Bharat Sharan Sharma
vs.
State of MP and others
3 W.P. No.14594/2014 and other connected matters
W.P. No.7917/2015
Smt. Kanti Devi Verma
vs.
State of MP and others
W.P. No.7920/2015
Yagyasen Patel
vs.
State of MP and others
W.P. No.8704/2015
Vanshroop Verma
vs.
State of MP and others
W.P. No.10376/2015
Ashok Kumar Pandey
vs.
State of MP and others
W.P. No.10522/2015
Mohd. Nabab Khan
vs.
State of MP and others
W.P. No.10524/2015
Brajlal Raikwar
vs.
State of MP and others
W.P. No.10525/2015
Rakesh Kumar Jain
vs.
State of MP and others
W.P. No.10743/2015
Tulsiram Sen
vs.
State of MP and others
W.P. No.12002/2015
Laxmi Narayan Sharma
vs.
State of MP and others
W.P. No.12133/2015
Chhotelal Verma
vs.
State of MP and others
4 W.P. No.14594/2014 and other connected matters
W.P. No.12994/2015
Todulal Dhamgaye
vs.
State of MP and others
W.P. No.14415/2015
Shriram Vishwakarma
vs.
State of MP and others
W.P. No.14610/2015
Ayodhya Prasad Verma
vs.
State of MP and others
W.P. No.17341/2015
Jugul Kishore Verma
vs.
State of MP and others
W.P. No.17719/2015
Santosh Kumar Soni
vs.
State of MP and others
W.P. No.17736/2015
Pushpendra Kumar Pandey
vs.
State of MP and others
W.P. No.17906/2015
Sharad Kant Khare
vs.
State of MP and others
W.P. No.17913/2015
Suryadeen Bharti
vs.
State of MP and others
W.P. No.18286/2015
Shashi Prabhakar Shukla
vs.
State of MP and others
W.P. No.18566/2015
Jai Pal Rajpoot
vs.
5 W.P. No.14594/2014 and other connected matters
State of MP and others
W.P. No.18657/2015
Ram Sajeevan Verma
vs.
State of MP and others
W.P. No.19099/2015
Alla Bhasori
vs.
State of MP and others
W.P. No.20146/2015
Kishori Lal Verma
vs.
State of MP and others
W.P. No.20147/2015
Ganesh Prasad Pandey
vs.
State of MP and others
W.P. No.20151/2015
Kamlesh Kumar Namdeo
vs.
State of MP and others
W.P. No.20178/2015
Shyam Lal Sharma
vs.
State of MP and others
W.P. No.20284/2015
Praveen Kumar Tiwari
vs.
State of MP and others
W.P. No.20438/2015
Ram Kumar Tiwari
vs.
State of MP and others
W.P. No.20894/2015
Mani Raj Bharti
vs.
State of MP and others
W.P. No.21970/2015
Ram Khilawan Verma
6 W.P. No.14594/2014 and other connected matters
vs.
State of MP and others
W.P. No.21973/2015
Shobnath Kushwaha
vs.
State of MP and others
W.P. No.21974/2015
Rajneesh Kumar Dwivedi
vs.
State of MP and others
W.P. No.22263/2015
Santosh Kumar Verma
vs.
State of MP and others
W.P. No.22357/2015
Ram Narayan Mishra
vs.
State of MP and others
W.P. No.22359/2015
Ramdhar Verma
vs.
State of MP and others
W.P. No.22400/2015
Chhote Lal Kushwaha
vs.
State of MP and others
W.P. No.22401/2015
Sampati Kumar Dahiya
vs.
State of MP and others
W.P. No.240/2016
Bhupendra Singh Baghel
vs.
State of MP and others
W.P. No.2545/2016
Smt. Savitri Singh
vs.
State of MP and others
W.P. No.3478/2016
7 W.P. No.14594/2014 and other connected matters
Mohd. Ahmad Jameel Khan
vs.
State of MP and others
W.P. No.3479/2016
Momin Khan
vs.
State of MP and others
W.P. No.4025/2016
Uday Kumar Kushwaha
vs.
State of MP and others
W.P. No.5031/2016
Babu Rao Athnere
vs.
State of MP and others
W.P. No.8437/2016
Geeta Dwivedi
vs.
State of MP and others
W.P. No.9197/2016
Madhav Prasad
vs.
State of MP and others
W.P. No.13933/2016
Chandra Bhan Vishwakarma
vs.
State of MP and others
W.P. No.17458/2016
Anrath Singh Thakur
vs.
State of MP and others
W.P. No.18133/2016
Shayam Lal Uikey
vs.
State of MP and others
W.P. No.19148/2016
Dharmendra Kumar Jain
vs.
State of MP and others
8 W.P. No.14594/2014 and other connected matters
W.P. No.19262/2016
Om Prakash Sharma
vs.
State of MP and others
W.P. No.1036/2017
Yagya Bhan Patel
vs.
State of MP and others
W.P. No.18557/2017
Lakhan Lal Sahu
vs.
State of MP and others
W.P. No.18718/2017
Panchraj Tiwari
vs.
State of MP and others
W.P. No.19557/2017
Sita Ram Patel
vs.
State of MP and others
W.P. No.934/2018
Uma Shakar Dwivedi
vs.
State of MP and others
W.P. No.21946/2018
Bhagwat Prasad Mishra
vs.
State of MP and others
W.P. No.21948/2018
Sitaram Tiwari
vs.
State of MP and others
W.P. No.22480/2018
Lakhraj Singh
vs.
State of MP and others
W.P. No.22487/2018
Manoj Kumar Mishra
vs.
State of MP and others
9 W.P. No.14594/2014 and other connected matters
W.P. No.22739/2018
Santosh Kumar Gupta
vs.
State of MP and others
W.P. No.22746/2018
Natthu Rao Jain
vs.
State of MP and others
W.P. No.22750/2018
Suresh Kumar Malviya
vs.
State of MP and others
W.P. No.25187/2018
Mahesh Pratap Singh
vs.
State of MP and others
W.P. No.25288/2018
Arjun Kumar Sen
vs.
State of MP and others
W.P. No.25292/2018
Ram Lakhan Sharma
vs.
State of MP and others
W.P. No.25293/2018
Prem Lal Vishwakarma
vs.
State of MP and others
W.P. No.27452/2018
Smt. Ram Bai
vs.
State of MP and others
W.P. No.29913/2018
Chhote Lal Singh
vs.
State of MP and others
W.P. No.303/2019
Deomani Rajak
vs.
State of MP and others
10 W.P. No.14594/2014 and other connected matters
W.P. No.304/2019
Dashrath Prasad Pandey
vs.
State of MP and others
W.P. No.326/2019
Ram Pratap Sahu
vs.
State of MP and others
W.P. No.1140/2019
Sheshmani Tiwari
vs.
State of MP and others
W.P. No.1240/2019
Prem Lal Kachi
vs.
State of MP and others
W.P. No.2735/2019
Ram Jiyawan Verma
vs.
State of MP and others
W.P. No.2839/2019
Smt. Vimla Mishra
vs.
State of MP and others
W.P. No.3679/2019
Bhaiya Lal Sondhiya
vs.
State of MP and others
W.P. No.3687/2019
Babulal Singh
vs.
State of MP and others
W.P. No.4414/2019
Manohar Lal Pawar
vs.
State of MP and others
W.P. No.4415/2019
Veeran Shri
vs.
11 W.P. No.14594/2014 and other connected matters
State of MP and others
W.P. No.4774/2019
Smt. Kusum Verma
vs.
State of MP and others
W.P. No.5574/2019
Chhote Lal
vs.
Managing Director
W.P. No.5575/2019
Ramadhar Verma
vs.
Managing Director
W.P. No.5702/2019
Ganpati Jain
vs.
Managing Director
W.P. No.5823/2019
Shivnarayan Borban
vs.
Managing Director
W.P. No.6232/2019
Shabana Begam
vs.
State of M.P. and others
W.P. No.5972/2019
Smt. Shanta Yadav
vs.
Managing Director
W.P. No.6227/2019
Naresh Chandra Pawar
vs.
State of M.P. and others
Date of Judgment 03/04/2019
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
12 W.P. No.14594/2014 and other connected matters
Name of counsels for parties For the Petitioners: Shri Ajeet Singh,
Advocate.
For the respondents: Shri Mukesh
Kumar Agrawal, Shri Anoop Nair, Shri
Ved Prakash Tiwari, Shri A.P. Shroti,
Shri Rohit Jain with Shri Mohd.
Siddiqui, Advocates.
Law laid down
Significant paragraph
numbers
ORDER
(03.04.2019) These matters were analogously heard on the joint request of the parties. The facts are taken from WP No.18718/2017.
2. The petitioner was initially appointed as Junior Engineer in Gramin Vidyut Sahkari Samiti, Rewa on 23.9.1986 (Annexure P/5). The State Government has taken a decision regarding abolition of Gramin Vidyut Sahkari Samiti and consequently the services of the petitioner were mereged with the M.P. State Electricity Board (MPSEB) by order dated 18.5.2004 (Annexure P/6) with effect from 15.3.2002. The petitioner has prayed for following reliefs in this petition:
"(i) It is, therefore, prayed that this Hon'ble Court may kindly be pleased to quash the impugned orders dated 15.12.2014 (Annexure P/1), order dated 09-10-15 (Annexure P-2), order dated 27-07-2015 (Annexure P-3) and other dated 25-03-17 (Annexure P-4) and the respondents be directed to give the benefits of third higher pay scale to the petitioner by counting his previous service from the date of his entitlement in terms of order dated 04-01-2016 with all service benefits including arrears.
(ii) Respondents be further directed to give the benefits of Revision of Pay Regulation, 2001 as well as benefits of 6th Pay Commission w.e.f. 01-01-2006 by modifying the pay fixation dated 11-02-15 with arrears and merge the EPF account into the GPF account w.e.f. 15-03-2002 and give the benefit of pension at par with the original employees of MPEB by counting his previous service.
13 W.P. No.14594/2014 and other connected matters
(iii) This Hon'ble Court be further pleased to pass any such other orders as this Hon'ble Court may deem fit under the circumstances of the case."
[Emphasis Supplied]
3. Shri Ajeet Singh, learned counsel for the petitioners submits that in these petitions, the petitioners are similarly situated and have prayed for similar reliefs. If any other uncommon relief is involved in any matter, such petitioners may be permitted to raise the same in separate fresh petition/s.
4. To elaborate, Shri Ajeet Singh, learned counsel for the petitioners submits that petitioner in the instant case was absorbed with effect from 15.3.2002. The respondents have passed the impugned order dated 15.12.2014 (Annexure P/1) whereby it was directed that services of the absorbed employees shall be counted from the date of absorption for the purposes of grant of higher pay-scale whereas respondents should have counted the services rendered by the absorbed employees in erstwhile societies for the purposes of counting their eligibility for grant of higher pay-scale. Learned counsel for the petitioners submits that para 4 of this order dated 15.12.2014 makes it clear that such absorbed employees shall get benefit of certain allowances and medical benefits etc. from the date of issuance of order i.e. 15.12.2014 whereas they were entitled to get the benefits from the date of absorption. The very same document dated 15.12.2014 was subject matter of challenge before this Court in WP No.3547/2015 (Uma Shankar Dwivedi vs. State of M.P. and others) decided on 06.10.2015. This Court by order dated 16.10.2015 has set aside the same order dated 15.12.2014. The employer assailed it before the Apex Court in Civil Appeal No.9146-9148/2018. The Apex Court with little 14 W.P. No.14594/2014 and other connected matters modification mentioned in para 4 of the order which is related with Pay Revision Regulations, 2001 did not disturb the remaining part of order passed by this Court. Thus, for all practical purposes, the impugned order dated 15.12.2014 except the modification mentioned herein above had attained finality. In the teeth of this order, it is no more open to the respondents to deprive the petitioners from fruits of medical benefits and other allowances from the date of absorption. Putting it differently, it is argued that petitioners are entitled to get these benefits from the date of their absorption.
5. Further more, it is urged that clause 6 of this order dated 15.12.2014 must also be treated as set aside in view of order passed by this Court in the case of Umashankar Dwivedi (Supra). Shri Ajeet Singh by taking this court to the judgment of Supreme Court in the case of Panchraj Tiwari vs. MPSEB reported in (2014) 5 SCC 101 contended that once service is merged with another service, the merged service gets its birth in the integrated service and loses its original identity. Thus, petitioners for all practical purposes became employees of the respondent-employer and their origin has lost its significance. Thus, petitioners are entitled to get the benefit of revision of pay-scale and pension. It is argued that two revisions have taken place in the past. The first revision is pursuant to 'M.P. State Electricity Board (Class III and Class IV Employees) Revision of Pay Regulations, 2001 ('Regulations'). Learned counsel for the petitioners submits that in clause 1(c)(vi), it was made clear that these Regulations were not applicable to employees of the Societies who were absorbed in the Board to whom the pre-revised pay-scales were not applicable. The 15 W.P. No.14594/2014 and other connected matters Regulations came into being with effect from 1 st January, 2001. The petitioners who were absorbed subsequent thereto became employees of MPSEB from the date of their absorption. These Regulations and revised pay-scales arising thereto should be made applicable on the petitioners.
6. The second pay revision took place with effect from 01.01.2006. It is submitted that by order dated 18.08.2009 Annexure P/17, the revision of pay-scale was made applicable to the absorbed employees. In clause 3(c), it was clarified that the arrears of revision of pay shall be payable to the absorbed employees with effect from 01.08.2009 whereas, for the regular employees of the MPEB, it was paid from due date i.e. 01.01.2006. Learned counsel submits that this issue also travelled before the Indore Bench. By order of Indore Bench in WP No.1962/2010 decided on 13.09.2011 (Annexure-P/17) the said action of employer was disapproved. The employer unsuccessfully challenged the order of writ court before the Division Bench in review jurisdiction. Thereafter, by communication dated 14.1.2015 Annexure P/18, similarly situated absorbed employees, who were petitioners before the Indore Bench, were given the benefit of revision of pay-scale and arrears with effect from 1.1.2006. The next contention of learned counsel for the petitioners is for grant of pension. The basis for this argument is the same i.e. once petitioners became employees of respondents-Electricity Board, there is no justification in not extending the same pensionary benefits which were extended to the employees of M.P.S.E.B. Reliance is placed on the judgment of Indore Bench in WPS No115/2005 (Bijli Karmachari Snagh vs. M.P.S.E.B.) decided on 07.05.2015. Shri Singh urged that Writ Appeal and SLP(C) 16 W.P. No.14594/2014 and other connected matters No.24772/2016 filed against this judgment were dismissed. It is submitted that in the light of this judgment, the benefits have already been extended in favour of the similarly situated employees.
7. In nutshell, petitioners have prayed for counting their services rendered in erstwhile societies for the purposes of grant of time-scale of pay and categorically pleaded in the prayer clause that this relief may be granted in terms of the order dated 2.1.2016 (Annexure P/22). In addition, as noticed, the petitioners have prayed for grant of revision of pay as per Regulations of 2001 from the date of absorption, benefit of revision of pay as per 6th Pay Commission with effect from 1.1.2006 or from the date of the absorption of the petitioners. The petitioners have prayed for a direction to merge the EPF Account into GPF Account with effect 15.3.2002 and give the benefit of pension at par with the original employees of M.P.S.E.B. by counting their previous services.
8. Shri Mukesh Kumar Agrawal, learned counsel for the employer submits that the event of absorption took place on two occasions. First absorption is relating to eight societies namely: Multai, Manawar, Banda, Pichor, Gohad and Mungawali. This merger had taken place by order dated 18.05.2004 w.e.f 15.03.2002. Another merger had taken place on 13.08.2010 relating to societies of Sidhi, Amarpatan, Loundi, and Nowgaon.
9. Shri Agrawal urged that the petitioners in these batch of petitions became employees of MPSEB pursuant to two different mergers. It is submitted that so far benefit of revision of pay-scale as per regulations of 2001 is concerned, the Apex Court in Civil Appeal No. 9146-9148/2018 17 W.P. No.14594/2014 and other connected matters Uma Shankar Dwivedi's case clearly opined in para 4 that parity can be claimed in limited cases.
10. In the light of this para, Shri Agrawal submits that if petitioners are similarly situated then the matter is different. Otherwise, the order passed by Madhya Pradesh High Court in the case of Uma Shankar Dwivedi(supra) WP No. 3547/2015 dated 06.10.2015 stood modified in view of para 4 of said order passed by Apex Court.
11. Shri Agrawal urged that subject to fulfillment of conditions mentioned in para 4 of the judgment in Uma Shankar Dwivedi's case, the regulations of 2001 can be made applicable to the absorbed employee from the date they became employees of respondent employer.
12. So far benefit of 6th and 7th Pay Commission is concerned, in view of para 5 of judgment of Supreme Court in Uma Shankar Dwivedi (supra), Shri M.K. Agrawal fairly admitted that the erstwhile employees of societies are entitled to get the benefit of such revision of pay-scale from the date they became employees of the respondent/employer.
13. Shri Agrawal submits that the petitioners were earlier governed by different pension scheme/EPF scheme. The amount of contribution, method of collection, authority with whom amount was deposited, mode of payment of pension and its calculation, everything was different. They can switch over to a different pension scheme only when law/rule permits. The petitioners have not filed any application praying to switch over from earlier scheme to the pension rules applicable to the MPSEB. In absence thereof, no relief is due to the petitioners.
14. Shri Anoop Nair appeared in WP No. 934/2018 and urged that 18 W.P. No.14594/2014 and other connected matters petitioners are not entitled to get the benefit of pension as prayed for by them.
15. Shri J.K. Pillai, appeared in certain matters on behalf of P.F. Organization. He urged that earlier when petitioners were employees of erstwhile societies, the employer use to deduct the employees contribution and add their own contribution and deposit it before the P.F. authorities. The day petitioners became employees of present employer, the said arrangement discontinued. The present employer is exempted from the purview of employees Provident Fund and Miscellaneous Provisions Act 1952. Present employer has created its own trust on which P.F. Organization has no power of Superintendence. Thus a practical difficulty exists relating to switch over from one method/system of P.F. to another method governed by different set of rules.
16. Shri Ved Prakash Tiwari appeared in WP No. 22379/2018 and borrowed the arguments advanced by the other counsel for the employer.
17. Shri A.P. Shroti, learned counsel for the employer has filed written submissions. It is urged that M.P. Power Management Co. Ltd. is the holding company of all the Distribution Companies (DISCOMs) including the answering respondent company and, therefore, the order dated 15.12.2014 is applicable mutatis mutandis to all the companies. The petitioners have not challenged the order dated 18.06.2014 which had attained finality and in absence thereof, petitions deserve to be dismissed. The petitioner - Praveen Kumar Tiwari filed W.P. Nos.10719/2014 and 20284/2015 challenging inter alia the inaction to pay pension and order dated 15.12.2014. Although this pleading is not taken in the reply filed, 19 W.P. No.14594/2014 and other connected matters since it is self-evident, this Court can take notice of the same. A list of cases is prepared to show that the order dated 15.12.2014 has not been challenged in those cases.
18. Regarding claim for pension, GPF, higher pay scale and up- gradation, it is argued that in the case of Panchraj Tiwari (supra), the terms of absorption were reproduced by Supreme Court. In para 17 of the said judgment, it was made clear that although absorbed employees from the date of absorption shall be treated as juniors to the juniormost employees of the Electricity Board, all other principal conditions of absorption shall remain as such. The petitioners/erstwhile employees of the society were members of EPF Scheme and, therefore, the petitioners are not entitled to get the benefit of GPF Scheme. Indore Bench order dated 07.05.2015 passed sub silentio the order dated 18.06.2014 which was based on the law laid down by the Apex Court in the case of Panchraj Tiwari (supra). This judgment did not consider Para 3.1 and 3.5 of judgment of Panchraj Tiwari (supra) though it was referred in the said Indore Bench judgment. Hence, said judgment cannot be treated as binding precedent regarding issue of pension and other conditions of absorption. It is stated that benefit of pay/higher pay scale was not available to the employees of the Rural Electricity Co-operative Society. After becoming employees of the MPSEB, they became entitled for up-gradation of pay on completion of nine years of service and were accordingly granted benefit of up-gradation.
19. The stand of Shri Shroti regarding 5th and 6th Pay Commission benefits is that as directed in Civil Appeal of M.P. P.K.V.V. Company Vs. Uma Shankar Dwivedi, the cases are being decided by the answering 20 W.P. No.14594/2014 and other connected matters respondent society-wise and individual orders are being issued.
20. No other point is pressed by learned counsel for the parties.
21. I have bestowed my anxious consideration on the rival contentions and perused the record.
22. As noticed, there is a chequered history of litigations for various claims of erstwhile employees of societies who were absorbed in M.P.S.E.B. Before dealing with the claim point-wise, it is condign to refer certain findings given by the Supreme Court. In Panchraj Tiwari (supra), the Apex Court opined as under:
"6.3. 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.
7. In the instant case, the undisputed factual and legal position is that there is absorption of the employees of the Rural Electricity Cooperative Society, Rewa with M.P. SEB. The Society has been deregistered, there is only one service thereafter and thus there is functional integration. On the basis of the protection of the designation and pay scale, the employees have to be posted in the equivalent category. Since it is not specifically provided as to the position of such employees in the integrated service, it is a settled equitable principle that such employees are placed as junior to the juniormost officer of the category concerned in M.P. SEB on the date of absorption viz. 15-3-2002.
16. The instant is a case where there is complete denial of promotion forever which cannot be comprehended under the constitutional scheme of Articles 14 and 16 of the Constitution of India. In this context, we shall refer to a beautiful discussion on this aspect in S.S. Bola case[(1997) 8 SCC 522] at para 153. The relevant portion reads as follows: (SCC p. 634) AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe themethod of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of 21 W.P. No.14594/2014 and other connected matters valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion [Ed.: The words between the two asterisks are emphasised in original.] would not be [Ed.: The words between the two asterisks are emphasised in original.] regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se."
(emphasis supplied)
17. 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. 15-3-2002 as juniors to the juniormost employee of the Electricity Board in the respective category. Thereafter, they shall be considered for further promotions as per the rules/regulations of M.P. SEB. 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.
18. The appellant accordingly shall be entitled to retrospective promotions on a par with and with effect from the dates on which the juniormost 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.
23. In Uma Shankar Dwivedi (supra), the Supreme Court in Para 4 has held held as under:
"4. We make it clear that in case Appellant No.1 has extended the benefit of the pay revision Regulations of 2001, despite the exclusion in the Notification dated 27.04.2006, to those employees where the pre-revised pay scales had not been applied, the respondent/employees belonging to the Rewa Society will not be discriminated."
24. Claim regarding benefit of Revision of Pay Regulations, 2001:
(i) Shri Ajeet Singh, learned counsel for the petitioners by placing reliance on the judgment of this Court in Uma Shankar Dwivedi (supra) and judgment of Indore Bench in W.P. No.1962/2010 (Electricity Supply 22 W.P. No.14594/2014 and other connected matters Employees Union Vs. State of M.P.) stated that all the petitioners are entitled to get the benefit of pay scale arising out of Regulations of 2001 from the date of their absorption. By order dated 14.01.2015 (Annexure-
P/18), the order of the Indore Bench in W.P. No.1962/2010 has been implemented and arrears arising thereto have been paid to the employees.
(ii) Pausing here for a moment, the opening sentence of the order dated 14.01.2015 (Annexure-P/18) shows that it relates to employees of Manawar Society who were absorbed in M.P.S.E.B. Pertinently, before absorption, in their parent society also they were getting the same pay scale which their counter-parts in M.P. S.E.B. were getting at the time of absorption. This is a very important and distinguishable feature and, therefore, at the outset, this fact has been highlighted. This Court in W.P. No.No.3547/2017 (Uma Shankar Dwivedi Vs. State) directed that the 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. However, it was clarified that such employees would be eligible to get benefit of revision of pay scale in accordance with the provisions of 5 th and 6th Pay Commission. The arrears arising out of benefit of 5 th and 6th Pay Commission are required to be paid to the petitioners.
(iii) As noticed, in the appeal, the Apex Court clarified it in Para 4 (reproduced above) and made it clear that the parity has a limited application. Thus, it is noteworthy that even this Court in the case of Uma Shankar Dwivedi (supra) did not grant benefit of revised pay scale as per Regulations of 2001 and the Apex Court in no uncertain terms made it clear that if appellant No.1 extended the benefit of pay revision under 23 W.P. No.14594/2014 and other connected matters Regulations of 2001 to such employees who were not enjoying the pre- revised pay scales, employees of Rewa Society cannot be given step motherly treatment. This aspect came up for consideration before the Division Bench of this Court in 2012 (5) MPHT 183 (Gwalior Bench) (M.P.S.E.B. Vs. Brajendra Singh Kushwah and others), it was held as under:
"22. The judgment dated 13-9-2011 in W.P. No. 12029/2010, on which heavy reliance has been placed by the writ Court while rendering the impugned order, has been delivered on the following two assumptions:
--
(i) That, the employees serving the REC Society (Manawar) were at par with the employees of the MPSEB in the matter of pay scales; and
(ii) Since the REC Society (Manawar) employees were treated at par with the MPSEB employees in the matter of pay scales, the bar contained in Clause 1(c)(vi) of the Regulations of 2001 will not apply.
23. The above said two features persuaded the Single Bench of this Court while rendering the judgment dated 13-9-2011 in WP No. 12029/2010 by issuing directions for treating the employees of REC Society (Manawar) at par with the MPSEB employees in the matter of pay scale and accordingly issued the directions for grant of all benefits to such absorbed employees as were extended to the original employees of the Board.
24. In the present case, the distinguishing feature is the pay disparity which existed not only since prior to the date of absorption but also continued subsequent thereto on account of the terms and conditions contained in the order of the Commission granting sanction for revocation of 10 REC Societies and the consequential orders of absorption. It is neither pleaded nor it is the case of the petitioners that there was parity of pay scale before or after absorption between the absorbed employees vis-a-vis the original employees of the Board. Resultantly the petitioners not having challenged the terms and conditions contained in the order of sanction for revocation of licence dated 20-2-2002 and also contained in the order of absorption issued by the Board, are now estopped from challenging the necessary fallout/consequence of pay disparity stemming out of the said unchallenged terms and conditions.
25. Learned counsel for the Board has placed reliance on various decisions including the Division Bench decision of this Court dated 27- 7-2007 in Writ Appeal No. 1361/2006 rendered at the Principal Seat, wherein the Division Bench while dealing with facts and circumstances similar to the ones existing in this case, upheld the order of the Single Bench passed in Writ Petition No. 463/1999 by holding in paragraphs 18 and 19 of its decision as follows:
"18. Submissions of Mr. Ruprah, learned counsel is that as the 24 W.P. No.14594/2014 and other connected matters applicant's case was considered by the society for promotion and at the time of absorption it was mentioned that they would be absorbed on the same terms and conditions as existing in the society and he was Junior Engineer and, therefore, he was entitled to be promoted as Assistant Engineer as such Junior Engineers who have been similarly placed under the services of the Board have been promoted. As is perceivable the Board had issued further guidelines/terms and conditions as per order/circular dated 5-6-2004. On reading of the further terms and conditions it cannot be said that the employee who has been absorbed in the Board will get the benefit of the Board as if he was an employee of the Board from very inception. The Board at the time of absorption has fixed the terms and conditions and on a perusal of such terms and conditions it is quite clear that the Junior Engineer shall be given the designation but would not be considered for promotion by applying the Board's regulations as if he was in the Board's services. The said terms and conditions fixed by the Board are in consonance with the decision rendered in Ram Parvesh Singh (supra) wherein it has been held that the Board has no obligation towards the employees of the previous owner's undertaking. Be it noted to arrive at such a conclusion their Lordships have placed reliance on the decision rendered in Bhola Nath Mukherjee v. Government of W.B., (1997) 1 SCC 562.
19. In view of our preceding analysis we do not find any merit in the present writ appeal and accordingly the same stands dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs."
26. In view of the above, it appears that the decision of the Single Bench rendered on 13-9-2011 in WP No. 12029/2010 was based upon different set of facts and circumstances where the parity between the absorbed REC Societies employees and the original employees of the Board was not disputed. Thus, the said decision in W.P. No. 12029/2010 and the reliance placed thereupon is of no avail to the petitioners/respondents herein, in the present case where no such parity existed either before or after absorption. Thus, this Court is impelled to hold that the reliance placed by the Writ Court on the order dated 13-9- 2011 passed in W.P. No. 12029/2010 while passing the impugned order is misplaced.
27. In the conspectus of the above facts and circumstances and the findings rendered, the Writ Appeal No. 137/2012, MPSEB v. Brajendra Singh Kushwah is allowed whereas Writ Appeal No. 202/2012, Brajendra Singh Kushwah v. MPSEB is dismissed and the impugned order dated 27-1-2012 passed in Writ Petition No. 2459/2010 is set aside. No order as to costs."
[Emphasis Supplied]
(iv) This judgment of Gwalior Bench was assailed by the employees before the Apex Court in SLP (C) No.28516/2013 decided on 27.04.2015. The respondent-Board in Para 5 of counter-affidavit filed before the 25 W.P. No.14594/2014 and other connected matters Supreme Court decided to grant the benefit to the petitioners and, therefore, in terms of the counter affidavit, SLP was disposed of.
(v) In 2013 SCC OnLine MP 10181 (Mukesh Chandra Gupta and others Vs. M.P. State Electricity Board and others) decided on 09.12.2013, the argument of absorbed employees was based on a Division Bench judgment of Indore Bench in W.A. No.685/2011 (M.P. State Electricity Board Vs. Electricity Supply Employees Union) decided on 22.04.2013. This Court in Para 8 & 9 opined as under:
"8. No doubt, the Indore Bench considered the judgment of Brajendra Singh Kushwah (supra). A perusal of page 5 of the judgment shows that in the Rural Electrification Cooperative Society, Manawar the employees were getting pay scale at par with the respondent-Board. In other words, the pay scales granted to the employees of Cooperative Society were similar to that of the employees of the Board before absorption. The absorption order gave protection to employees that existing terms and conditions will follow. Since in Manawar Society the pay scales were same, the conditions of absorption were directed to be implemented. However, in Brajendra Singh Kushwah (supra) the conditions were different. Therefore, Indore Bench in para 8 of the judgment opined that the present case stands on different factual footing because the members of respondent No. 1-Union were getting the same pay scale as employees of the Board prior to their absorption.
9. In the present case, admittedly, the pay scales of the petitioners were inferior in the erstwhile society and, therefore, Indore Bench judgment is of no assistance to them. The judgment in Brajendra Singh Kushwah (supra) will hold the field. It is apt to quote paras 24 and 26 of the judgments in Brajendra Singh Kushwah (supra), which reads as under:-
[Emphasis Supplied]
(vi) A careful reading of the judgments passed in Brajendra Singh Kushwah and Mukesh Chandra Gupta (supra) makes it clear like noon day that absorbed employees of Manawar Society were getting pay scale at par with the employees of the respondent Board. Thus, as per the terms and conditions of the absorption, they had protection of their service conditions and for this reason, the erstwhile employees of Manawar Society were given the benefit of same pay scale on their absorption. This principle and 26 W.P. No.14594/2014 and other connected matters benefit of such parity based on the Regulations of 2001 can be extended only for such employees who are covered by Para 4 of the order passed by Supreme Court in the case of Uma Shankar Dwivedi (supra). This aspect is answered accordingly.
25. Claim regarding 6th Pay Commission :
(i) This aspect is no more res integra. In Uma Shankar Dwivedi (supra), this Court opined that absorbed employees are entitled to get 5 th and 6th Pay Commission benefits. The Apex Court in Para 5 of said judgment opined as under:
"5. As far as implementation of recommendations of Sixth and Seventh Pay Commissions are concerned, there cannot be any dispute. The benefits will be extended to the employees of the REC Societies with effect from the date of the benefits of the Sixth and Seventh Pay Commission have been given to the employees of Appellant No.1. If there is any arrears to be paid in this regard, the same shall be paid within three months from today."
[Emphasis Supplied]
(ii) In this view of the matter, it can be safely concluded that absorbed employees are entitled to get the benefit of corresponding pay scale as per the recommendations of 6th Pay Commission from due date with arrears of pay.
26. Claim regarding counting previous service for grant of higher pay scale/financial up-gradation and claim of family pension as per policy applicable to the regular employees of M.P.S.E.B. :
(i) This Court in Uma Shankar Dwivedi (supra) opined that if previous service conditions of the absorbed employees are protected, it cannot be said that they 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 as a class separate than the regular establishment of
27 W.P. No.14594/2014 and other connected matters the respondent-Board. Thus, it will amount to discrimination which runs contrary to Article 14 of the Constitution of India. This cannot be permitted by framing any policy etc. In no uncertain terms, a finding was given that there was no policy made in this respect and even when the policy was made, no such restriction was placed by the respondent-Board, once absorption is completed, the petitioners became part and parcel of main stream in the establishment of the Board and as such would be entitled to the application of service conditions of the Board. In Paras 6.3 and 7 of the judgment of Panchraj Tiwari (supra), the Apex Court has taken the same view.
27. In view of aforesaid judgments, it is clear that upon absorption in M.P. S.E.B., the petitioners became employees of the Board for all purposes. They cannot be discriminated on the basis of their birth mark. Otherwise, it will amount to divide a homogeneous class and create a class within the class which is impermissible in the teeth of Article 14 of the Constitution. In Para 7 of the judgment of Panchraj Tiwari (supra), their Lordships held that on such integration of service and upon joining in M.P.S.E.B., the absorbed employees shall be placed as junior to the juniormost officer on the date of absorption viz. 15.03.2002. Thus, the petitioners will get bottom seniority on the date of absorption. The ancillary question is : whether services rendered by them in the erstwhile employment can be counted for the purpose of qualifying service for pension and qualifying service/eligibility condition for the purpose of grant of time scale of pay ? The question of grant of pension is no more res integra. The Indore Bench in W.P. (s) No.1151/2005 considered this aspect 28 W.P. No.14594/2014 and other connected matters in great detail. Various judgments passed by the High Court and judgment of Apex Court in Panchraj Tiwari (supra) were considered by Indore Bench. After meticulous examination of legal position, the Indore Bench opined as under:
"11- Meaning thereby, the employees who have been absorbed were treating at par with the employees of the M.P. State Electricity Board in the matter of pay scale, dearness allowance and other fringe benefits, meaning thereby, for all purposes the employees of the Societies are the employees of M.P. State Electricity Board and the same benefits which have been extended to the employees of M.P. State Electricity Board have been extended to the employees who have been absorbed pursuant to closure of the Society where they were initially appointed.
12- Learned counsel for the petitioner has fairly admitted before this Court that all the benefits have been granted to the employees of the Society, however, in the matter of grant of pension, the respondents are not paying the pensionary dues to the employees who absorbed in the services of the Board.
13- This Court in the light of the judgment delivered in the earlier round of litigation and also keeping in view the order passed by the Hon'ble Supreme Court in the case of Brajendra Singh Kushwaha (Supra) and the order passed in the case of Panchraj Tiwari (Supra) is of the considered opinion that once the employees have absorbed in the services of the M.P. State Electricity Board they are the employees of M.P. State Electricity Board for all purposes. A instrumentality of the State cannot be permitted to discriminate between its employees by treating the absorbed employees as a different class of employees. There is one only class of employees i.e. employees working in the M.P. State Electricity Board. There is a pensionary scheme for the employees of the M.P. State Electricity Board, and therefore, the members of the petitioner - Union, meaning thereby, all the employees absorbed in the services of M.P. State Electricity Board are certainly entitled for the benefits of pension scheme and other fringe benefits for which the employees of M.P.State Electricity Board are entitled.
14- Resultantly, the writ petition stands allowed. The respondents are directed to extend the pensionary benefits and other fringe benefits to the absorbed employees who are now the employees of M.P. State Electricity Board. The exercise of passing necessary orders in respect of pensionary benefits and other fringe benefits be passed within a period of ninety days from the date of receipt of certified copy of this order. The writ petition stands allowed. No order as to costs."
[Emphasis Supplied]
28. It is relevant to note that the employer took the same stand before 29 W.P. No.14594/2014 and other connected matters Indore Bench that the absorbed employees and regular employees of the Board are governed by different set of Pension Scheme etc. This stand could not find favour before the Indore Bench. The said order of W.P. No.1151/2005 was assailed in W.A. No.334/2015 (M.P. State Electricity Board (Now known as M.P. Paschim Kshetra Vidyut Vitaran Co. Ltd. Indore Vs. Bijali Karmchari Sangh) decided on 14.06.2016. The Division Bench after considering the judgment of Apex Court in Panchraj Tiwari and Brajendra Singh Kushwah (supra) opined as under:
"The Hon'ble Single Judge has reproduced the relevant part of all the judgments, hence the issue regarding the service conditions of the employees and societies who were absorbed in the Board is no more res integra and has been settled by this Court as well as by the Supreme Court. It is not in dispute that the employees who were absorbed are treated at par with the employees of the Board shall get the benefits which includes pensionary benefits and other fringe benefits also. Further contention of the appellant is also liable to be rejected in respect of that the employees of petitioner-society covered under the Employees Provident Fund Act and Payment of Gratuity Act, 1972 because once it has been held that after absorption they are treated at par with the employees of Board then they shall get the same benefits which has been granted to the employees of the Board."
[Emphasis Supplied]
29. The writ Court and Division Bench in said writ appeal considered the judgment of Panchraj Tiwari (supra) in extenso and, therefore, I am unable to persuade myself with the argument of Shri Shroti that said judgment may be treated as sub silentio. In view of this binding judgment passed in W.A. No.334/2015 against which SLP No.24772/2016 was dismissed on merits on 30.11.2018, I am inclined to hold that the judgment of Indore Bench in Bijali Karmchari Sangh decided on 07.05.2015 will apply mutatis mutandis to present batch of petitions. Thus subject to fulfilling the formalities, petitioners are entitled to get pensions and fringe benefits as per the judgment of Bijlai Karmchari Sangh (supra).
30 W.P. No.14594/2014 and other connected matters
30. There is no scintilla of doubt that services rendered by the petitioners in the society are taken into account for the purpose of qualifying service for determining pension/retiral dues. The question is : whether those services can be counted for the purpose of grant of higher pay scale ? In the relief clause, the petitioners have categorically prayed that their previous services from the date of entitlement in terms of the order dated 04.01.2016 may be directed to be counted for the purpose of grant of third higher pay scale. A careful reading of terms and conditions for grant of third time scale of pay (higher pay scale) mentioned in circular dated 04.01.2016 (Annexure-P/22) shows that the service shall be counted in any cadre from the date of appointment to the post, which is a regular post of that cadre. For example, it is mentioned that in a ministerial grade, O.A. Grade III is entry post whereas for Line Staff, it is Line Attendant. Similarly, in Engineering/Officer Cadre, Junior Engineer/Assistant Engineer or equivalent is the entry post. As per Clause (ii) of the terms and conditions, the service can be counted from the date of appointment in any cadre. As per FR-9(iv), "Cadre" means "the strength of service or a part of service sanctioned as a separate unit". By no stretch of imagination, it can be said that previous service of the petitioners before absorption was rendered in the cadre of M.P.S.E.B. In absence thereto, those services cannot be taken into account for the purpose of grant of higher pay scale. Thus, this claim is devoid of merits and deserves rejection.
31. Claim regarding benefit of medical reimbursement and allowances:
The petitioners have challenged the order dated 15.12.2014 [(Annexure-
P/1) Clause (4)] whereby while granting the benefits of medical 31 W.P. No.14594/2014 and other connected matters reimbursement, allowances arising out of working during National Festivals and other allowances and benefits were extended from the date of order viz. 15.12.2014. This is trite in view of the judgment of Supreme Court in Panchraj Tiwari (supra) that once petitioners are absorbed in M.P.S.E.B., they became employees of M.P.S.E.B.. Their origin/birth mark pales into insignificance. The respondents themselves decided to grant them aforesaid benefit from 15.12.2014. There is no justification in depriving them from these benefits from the date of absorption. Thus, I am constrained to hold that action of the employer in extending the aforesaid benefits mentioned in Clause (4) of the order dated 15.12.2014 from the date of issuance of order is bad in law. Indeed, the petitioners are entitled to get the said benefits from the date of absorption.
32. In view of the foregoing analysis, these batch of petitions are disposed of with following directions:
(i) The petitioners may claim and shall be entitled to get the pay scale prescribed in the Regulations of 2001 provided their cases are covered by Para 4 of the order passed by the Supreme Court in the case of Uma Shankar Dwivedi (supra). If their cases are covered, the petitioners may file applications claiming the said benefits and if they are similar qua the employees of Manawar Society and their cases are covered by Para 4 of the judgment of Uma Shankar Dwivedi (supra), it shall be the duty of the respondents to extend the similar benefit of pay scale to the petitioners from due date.
(ii) The petitioners are entitled to get the benefit of 6 th Pay Commission in terms of revised pay scale. If the revised pay scale has not been
32 W.P. No.14594/2014 and other connected matters given to the petitioners as per the recommendation of 6 th Pay Commission, it shall be the duty of the respondents to extend the same from due date with arrears.
(iii) The previous service rendered in the society shall not be counted for the purpose of grant of higher pay scale/financial up-gradation.
(iv) The petitioners shall be entitled to get the benefit of pensionary scheme and other fringe benefits, which are applicable for the employees of M.P.S.E.B. as per the judgment of Indore Bench in W.A. No.334/2015 (M.P. State Electricity Board (Now known as M.P. Paschim Kshetra Vidhyut Vitran Company Ltd. Indore) Vs. Bijali Karmchari Sangh).
(v) The petitioners shall get the benefits mentioned in Clause (4) of the order dated 15.12.2014 (Annexure-P/1) from the date of their absorption.
(vi) The entire exercise be completed within six months from the date of completion of formalities by the petitioners for grant of aforesaid benefits.
(vii) The petitioners are at liberty to file separate proceedings for other reliefs which have not been pressed and decided in the present petitions.
33. The petitions are partly allowed. No cost.
The Registry shall keep the photocopy of this order in all connected matters.
(Sujoy Paul) Judge YS/Biswal SHIBA NARAYAN BISWAL 2019.04.04 13:38:48 +05'30'