Madhya Pradesh High Court
Madan Lal Yadav vs Shri Pankaj Agrawal on 1 August, 2017
1
Conc. No.859/2016
(Madan Lal Yadav Vs. Shri Pankaj Agrawal & Others)
01.08.2017
Shri B.P. Singh, Advocate for the petitioner.
Shri A.K. Jain, Advocate for the respondent no.2 to 4.
1. This common order shall govern disposal of the present contempt petition and other connected contempt petitions bearing number(s) Conc.No. 768/2015, Conc.No. 891/2015, Conc.No 893/2015, Conc.No 894/2015, Conc.No 895/2015, Conc.No.897/2015,Conc.No.899/2015,Conc.No.172/2016, Conc.No.414/2016,Conc.No.197/2016,Conc.No.921/2016, Conc.No.1702/2016,Conc.No.1703/2016,Conc.No.1704/2016 & Conc.No. 49/2017.
2. All these contempt petitions allege non-compliance of final orders passed by the writ Court which were upheld by the division Bench of this Court declaring that the workmen who have been classified as permanent employees are entitled to fixation and payment of salary in the regular pay scale including increment which are admissible to substantively appointed employees after being subjected to the statutory recruitment process.
3. In majority of these contempt petitions, the State has responded by contending that the issue involved herein is subjudice before the Apex Court in various SLP's filed by the State including SLA(Civil) CC 17998/2010 in the case of State of M.P. & Ors. Vs. Smt. Aarti Saxena wherein the Apex Court by interim order dated 03.12.2010 has stayed a stayed judgment of this Court which is claimed by the State to be similar to the judgment whose non-compliance is alleged herein. State further informs that the said SLA(Civil) CC 2 Conc. No.859/2016 17998/2010 continues to be pending and the interim order subsists till date, which fact is found to be true on verification from the Supreme Court website.
4. The above said issue of an employee declared to be permanent by way of classification to be entitled to salary in the regular pay scale or not has since been decided authoritatively by the Apex Court in its judgment dated 15.12.2016 in various contempt petitions (C) including Contempt Petition (C) No. 771/15 in SLP (C)No.25284/12 in the case of Ram Naresh Yadav Vs. Ashwini Ray & Ors, whereby the Apex Court has inter alia held thus:
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 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 pay-scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof 3 Conc. No.859/2016 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 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 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 procedure and the benefit of increment and other benefits can only be granted after the 4 Conc. No.859/2016 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."
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. In view of the above, the orders passed by this Court in writ petitions and writ appeals whose non-compliance is alleged in these contempt petitions, loose their efficacy and are no more good law.
6. Ratio laid down by the Apex Court in the case of Ram Naresh Yadav (supra) is to the effect that an employee who is declared to be a permanent employee by way of classification cannot be treated at par with an employee appointed substantively after following the statutory recruitment rules, for the purpose of payment of salary. It is laid down by the Apex Court that such classified employees 5 Conc. No.859/2016 would be paid salary equivalent to the minimum of regular pay scale without any increment and it is only after they are regularized in service that the benefit of increments would flow.
7. Accordingly, these contempt petitions need not detain this Court any further and the same are disposed of by dropping rule nisi and directing the respondents to grant minimum pay of the pay scale admissible to the petitioners in all the contempt petitions in terms of their orders of classification alongwith all consequential benefits. While doing so, the law laid down by the Apex Court in the case of Ram Naresh Yadav(supra) shall be kept in mind.
8. It is pertinent to see that in some cases, respondents have alleged compliance by passing orders of appointing the petitioners as fresh appointees in the admissible pay scale. It is complained by the petitioners therein that past services put in by the petitioners between the effective date of classification as permanent employee and the date of passing of the said compliance order have been washed out. In this respect, respondents are directed to reconsider the cases of the said petitioners classifying them as permanent employees from the date in terms of the order of their classification and fix and pay salary at the minimum of pay scale admissible to the petitioners with such consequential benefits as directed by the Writ Appellate Court in case of each of the petitioners. 8.1. Before parting, it would be appropriate to mention that the execution of directions passed in this order shall remain subject to final order which is ultimately passed by the Apex Court in the case of State of M.P.Vs. Smt. Aarti 6 Conc. No.859/2016 Saxena(supra).
9. The present contempt petition and other connected contempt petitions bearing number(s) Conc.No. 768/2015, Conc.No. 891/2015, Conc.No 893/2015, Conc.No 894/2015, Conc.No.895/2015,Conc.No.897/2015,Conc.No.899/2015, Conc.No.172/2016,Conc.No.414/2016,Conc.No.197/2016, Conc.No.921/2016,Conc.No.1702/2016,Conc.No.1703/2016, Conc.No.1704/2016 & Conc.No 49/2017 stand disposed of with the above said observation.
10. No order as to cost.
(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
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