Madhya Pradesh High Court
The State Of Madhya Pradesh Thr. vs Om Prakash Sengar on 17 November, 2015
Author: Sheel Nagu
Bench: Sheel Nagu
1
W.A. No.187/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DB: SHEEL NAGU & ROHIT ARYA, JJ
W.A. No. 187/2015
State of M.P. & Ors.
Vs.
Om prakash Sengar
Whether reportable :- Yes / No.
____________________________________________________________
For Appellants-State : Shri Vishal Mishra, Deputy
Advocate General
For Respondent : Shri B.P. Singh, Advocate.
ORDER
(Delivered on this Day of 17th November, 2015) Per Sheel Nagu, J.
This intra court appeal assails the order of learned Single Judge passed on 14/12/2011 in W.P. No. 1184/2009 which was disposed of by following the decision dated 14/12/2011 passed in W.P. No. 6515/2011(s) by holding the petitioner / respondent herein to be entitled to the pay scale admissible to an employee in regular establishment, by virtue of being classified as permanent employee with corresponding direction for payment of difference of salary within three months.
2. Learned counsel for the rival parties are heard on the question of admission.
2W.A. No.187/2015
3. Learned State counsel primarily contends that the material document in shape of order dated 21/12/2009 appointing the petitioner / respondent daily rated Junior Engineer as a regular Junior Engineer under the M.P. Panchayat and Rural Development Department Class III (ministerial and non ministerial cadre) Recruitment and Condition of Service Rules, 1999 in the pay scale of Rs. 5,000 - 8,000/- on two years probation period could not be brought to the notice of the Court.
4. The basic facts forming foundation of the case are that the petitioner/respondent while working as daily rated diploma holder Supervisor (Junior Engineer) with the petitioners - State preferred an application u/S. 31, 61 & 62 of M.P. Industrial Relations Act which came to be decided by final order dated 25/01/1999 classifying the petitioner/respondent as permanent employee on the post of Diploma Holder Supervisor (Junior Engineer) w.e.f. 17/07/1995, with entitlement to the arrears of salary. The said order of the Labour Court was affirmed on 08/12/2003 by dismissal of the writ petition filed by the State. When benefit flowing out of the Labour Court order supra was not extended to the respondent- employee, he preferred W.P. No. 2369/2006(s) which was disposed of on 08/05/2006 with direction to the State to take final decision within three months. Again when State refused to comply with the order, respondent -employee preferred contempt petition 3 W.A. No.187/2015 bearing Cont. C. No. 672/2006 which was dismissed as rendered infructuous on 23/01/2009 on the submission of learned counsel for the contemnors therein that compliance has been made. Whereafter the Executive Engineer though passed order dated 02/08/2006 showing the petitioner-respondent to be classified as permanent Diploma Holder Supervisor (Junior Engineer), but denied difference of pay as directed by Labour Court. Aggrieved the petitioner-respondent preferred W.P. No. 1184/2009 seeking full compliance of order of the Labour Court which has been allowed in terms of the order passed in similar W.P.No. 6515/2011 decided on 14/12/2011.
5. The sole issue raised herein by learned counsel for the petitioners-State is that in view of order of regular appointment having been extended to the respondent-employee by order dated 21/12/2009 appointing him substantively as Sub Engineer on probation of two years which fact could not be brought to the notice of this Court in any of the earlier round, the State preferred review petition bearing R.P. No. 63/2012 which was dismissed on 13/11/2014 for the reason of absence of any error apparent on the face of record and the State and its functionaries having failed to bring forth document dated 21/12/2009 to the knowledge of the Court despite being in possession of the same.
6. Thus, the fulcrum of the arguments of the State is that in 4 W.A. No.187/2015 case the order dated 21/12/2009 appointing the petitioner- respondent to the regular post of Sub Engineer on probation of two years based on recommendation of DPC was within the knowledge of this Court in earlier round of litigation, the order impugned would not have been passed.
7. The declaration of the respondent as permanent employee on the post of Diploma Holder Supervisor (Junior Engineer) by way of classification made by Labour Court on 25/01/1999 was duly affirmed by dismissal of writ petition filed by the State which is not disputed by either side to have attained finality and binding effect.
7.1 Once the respondent was declared as permanent employee on the said post he must be treated as Diploma Holder Supervisor (Junior Engineer) w.e.f. 17/07/1995 in the regular cadre. 7.2 Pertinently the order dated 21/12/2009 appointing the respondent on the permanent post of Junior Engineer on two years probation period by treating him as daily rated Junior Engineer immediately prior to passing of the order. Surprisingly once the respondent was classified as permanent employee w.e.f. 17/07/1995 there was no question for treating him to be daily wager till 20/12/2009 (a day prior to issuance of order dated 21/12/2009) vide Annexure A-1.
7.3 Thus order dated 21/12/2009 cannot scuttle the claim of the 5 W.A. No.187/2015 respondent for being entitled to be treated as permanent Diploma Holder (Junior Engineer) w.e.f. 17/07/1995, moreso when this claim was judicially approved.
8. It appears that the order dated 21/12/2009 is a document issued to avoid extension of complete benefit flowing to the respondent pursuant to order of Labour Court dated 21/01/1999.
9. In view of above, it is crystal clear that the decision taken by the Writ Court does not suffer from any material irregularity, illegality or perversity and, therefore, the same is hereby upheld.
10. Accordingly, the present writ appeal deserves to be and is, therefore, dismissed allowing cost of Rs. 5,000/- to the respondent- employee for having been dragged to this Court by the State by filing this avoidable piece of litigation. The cost be paid within 90 days and the compliance report be filed with the registry of this Court.
(SHEEL NAGU) (ROHIT ARYA)
JUDGE JUDGE
Durgekar*