Madhya Pradesh High Court
Gurunarayan Katiyar vs The State Of Madhya Pradesh on 26 September, 2019
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 9029/2016
Gurunarayan Katiyar Vs. State of M.P. & others
Gwalior, Dated:-26/09/2019
Shri M.S. Rana, learned counsel for the petitioner.
Shri Alok Sharma, learned Government Advocate for the
respondents/State.
[1] With the consent of learned counsel for the parties, the matter is finally heard.
[2] Petitioner, daily wager classified as permanent under the Standard Standing Orders (SSO), seeks quashment of orders dated 25/02/2015, 02/04/2016, 05/04/2016, 07/04/2016 & 12/07/2016;
whereby, in furtherance to the law laid down by Hon'ble Supreme Court in the case of Ram Naresh Rawat Vs. Ashwini Ray and others [(2017) 3 SCC 436], the petitioner has been granted the minimum of Sixth Pay Commission.
[3] Claim of the petitioner is that having been classified as permanent by the Labour Court and the order having been affirmed till the stage of Special Leave Petition and the petitioner having earlier been granted the pay scale of regular establishment cannot now be relegated to the stage of a daily wager classified as permanent, and is granted minimum of the pay scale.
[4] True it is that there has been confusion as regard to the real status of a daily wager classified as permanent under the SSO. As to whether such classification will make them the member of regular 2 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others establishment and the regular pay scale. The controversy is now settled with the decision in State of Madhya Pradesh and others Vs. Dilip Singh Patel and others [(2017) 3 SCC 455] and Ram Naresh Rawat (supra).
[5] In Dilip Singh Patel (supra), it is held:-
"2. The factual matrix of the case is as follows: the respondent employees were classified as permanent employees as per the statutory provisions of the M.P. Standing Standards Orders. However, they were not granted the benefit of Sixth Pay Commission. The learned Single Judge after taking into consideration the facts and circumstances of the case and judgment of the High Court in P.H.E.D. vs. Budha Rao Magarde, 2002(1)M.P.L.J. 385 held that the respondent employees are eligible to receive revised scale after their classification. This order was affirmed by the Division Bench.
3. The learned counsel appearing for the State submitted that the respondents who were daily-wage employees were classified as permanent employees are not entitled for revised scale of pay in terms of the Sixth Pay Commission. Per contra, according to the learned counsel for the respondents, the respondents were classified as permanent employees as per the statutory provision of the M.P. Standing Standards Orders are entitled for the revised scale of pay. He further submits that Respondents 1 and 2 are already receiving regular scale of pay.
4. 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 OAs Nos. 648 of 1995, 293 of 1991 etc. In compliance with the orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) by orders 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 3 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others order of the Tribunal. It was further ordered that the regularization of the daily-wage employees shall be made as per the seniority list with due 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 allowance shall be effected from the issuance of those orders.
5. From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay scale as revised pursuant to the Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits."
[6] Similarly, in Ram Naresh Rawat (supra), it is held:-
"18. Insofar as the petitioners before us are concerned they have been classified as "permanent". For this reason, we advert to the core issue, which would determine the fate of these cases viz. whether these employees can be treated as "regular" employees in view of the aforesaid classification? In other words, with their classification as "permanent", do they stand regularized in service?
19. For this purpose, we would first like to refer to the provisions of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 and the Rules made thereunder known as the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963. Section 3(c) of the Act defines "Standing Orders" and as per Section 6, the State Government may, by notification, apply Standard Standing Orders to such class of undertakings and from such date as may be specified therein. Section 21 empowers the State Government to make rules to carry out the purposes of the said Act which are required to be notified. It empowers the State Government to frame Standard Standing Orders as well.4
THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others It is in exercise of powers under Section 21(1) of the Act that the State Government has framed Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 (hereinafter referred to as the "Rules"). Annexure to these Rules contains standard Standing Orders for all undertakings in the State. Standing Order No. 2 of this Order enumerates classification of employees which has already been reproduced above. As per this classification, an employee would be known as "permanent employee"
who has completed six months' satisfactory service in a clear vacancy in one or more posts whether on probation or otherwise or a person whose name has been entered in the muster roll and who is given a ticket of "permanent employee". It follows from the above that merely by putting in six months' satisfactory service, an employee can be treated as "permanent employee". Rights which would flow to different categories of employees including "permanent employee" are not stipulated in these Rules or even in the parent Act. It can be gathered from Rule 11 of the said Rules, which relates to termination of employment, that in case of a "permanent employee" one month's notice or wages for one month in lieu of notice is required when the employment of a "permanent employee" is to be terminated. On the other hand, no such notice or wages in lieu thereof is needed to be given to any other category of employees. Additional obligation casts on the employer is to record reasons for termination of service in writing and communicate the same to the employee.
20. With this, we advert to the question posed above. In the first blush, this question appears to be somewhat puzzling, as to how such a question can arise because normally an employee who is given the designation of "permanent employee" should be treated as "regular employee" as well. However, this puzzle vanishes when we examine the Standing Orders, acts and rules in question under which designation of "permanent employee" is acquired. Fortunately for us, we are not trading on a virgin territory.
21. This Court has already examine the issue in the context of these very Standing Orders of Madhya Pradesh. In Mahendra L. Jain v. Indore Development Authority [(2005) 1 SCC 639], this Court analyzed the standard Standing Order in question and held that 5 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others permanent classification does not amount to regularization, inasmuch as it was noted that the matter relating to the recruitment is governed by a separate statute, as can be seen from the following discussion therein: (SCC pp. 651-52, paras 28 & 31) "28. The 1961 Act provides for classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should be sanctioned by the State Government and all appointments to the said cadre must be made by the State Government alone. Even the appointments to the local cadre must be made by the Authority. The said provisions were not complied with. It is accepted that no appointment letter was issued in favour of the appellants. Had the appointments of the appellants been made in terms of the provisions of the Adhiniyam and the Rules framed thereunder, the respondent Authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the appellants herein. Who made the appointments of the appellants to the project or other works carried on by the Authority is not known. Whether the person making an appointment had the requisite jurisdiction or not is also not clear. We have noticed hereinbefore that in the case of Om Prakash Mondloi, the CEO made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of ODA work. The said order is not an "offer of appointment" by any sense of the term.
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31. The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. Constitution being the suprema lex, shall prevail over all other statutes. The only provision as regards recruitment of the employees is contained in Order 4 which merely provides that the manager shall within a period of six months, lay down the procedure for recruitment of 6 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In the absence of any specific directions contained in the Schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail."
22. The issue came up again in the case of M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey [(2006) 2 SCC 716] wherein this Court held that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularized in service. The Court also reiterated that the Standing Orders categorize the nature of employment and do not classify individual employees in different post according to the hierarchy created in the Department and thus proviso to Rule 2 does not apply to promotions or regularization in higher grade. We would like to reproduce following paras from the said judgment:
"17. The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702] wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) a daily-wager does not hold a post as he is not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularised in service; (4) if an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof.
18. The said decision applies on all fours 7 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others to the facts of this case. In Mahendra L. Jain (supra) this Court has categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations.
No finding of fact has been arrived at that before the respondent was appointed, the constitutional and statutory requirements were complied with.
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22. Such appointments, in our opinion, having regard to the decisions in Mahendra L. Jain (supra) and Manoj Shrivastava (supra) must be made in accordance with extant rules and regulations. It is also a well-settled legal position that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. Otherwise also the legal position in this behalf is clear as would appear from the decision of this Court in Dhampur Sugar Mills Ltd. v. Bhola Singh [(2005) 2 SCC 470] apart from Mahendra L. Jain (supra)."
23. A direct judgment on the subject is State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575] wherein it was held that a workman would be entitled to classification as permanent or temporary employee if the conditions precedent are satisfied. It was held that the respondent was not appointed against the clear vacancy, he was not appointed in a permanent post or placed on probation. This Court, thus, held that working on daily wages alone would not entitle him to the status of permanent employee. Para 7 of this judgment needs to be looked into: (SCC p. 579) 8 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others "7. A workman, therefore, would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The respondent was not appointed against a clear vacancy. He was not appointed in a permanent post or placed on probation. He had also not been given a ticket of permanent employee. Working on daily wages alone would not entitle him to the status of a permanent employee."
24. 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 appear 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".
25. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of M.P. vs. Dilip Singh Patel [(2017) 3 SCC 455]. That was a case where similarly situated employees, who were classified as "permanent employees" under the Standing Orders Act, were given minimum of the pay scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. The High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of the 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 scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services which regularisation was to take place as per the 9 THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder:
"We have heard the 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 OAs Nos. 648 of 1995, 293 of 1991, etc. In compliance with the orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) by orders 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-wage employees shall be made as per the seniority list with due procedure and the benefit of increment and other benefits can only be granted after the regularisation 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 allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay scale as revised pursuant to the Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits."
26. 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."
10THE HIGH COURT OF MADHYA PRADESH W.P. No. 9029/2016 Gurunarayan Katiyar Vs. State of M.P. & others [7] The claim put forth by the petitioner when tested on the anvil of the decision in Dilip Singh Patel (supra) and Ram Naresh Rawat (supra), cannot be acceded to.
[8] In view whereof, the impugned orders being in consonance with the decision in Dilip Singh Patel (supra) and Ram Naresh Rawat (supra) are not interfered with.
[9] Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) Judge Shubhankar* SHUBHANKAR MISHRA 2019.09.27 17:28:40 +05'30'