Madhya Pradesh High Court
Kishori Lal Prajapati vs Secretary The State Of Madhya Pradesh on 3 July, 2012
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.5332/2010(S)
Kishori Lal Prajapati and others
Vs.
State of M.P. And others.
And
Writ Petition No.5335/2010(S)
Daulatram Kushwaha and others
Vs.
State of M.P. And others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Pushpendra Yadav, learned counsel for
petitioners.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
respondents.
ORDER
(03.07.2012) 1: These two petitions have been filed under Article 226 of the Constitution of India, seeking the same relief on the same facts by the petitioners, therefore, both the writ petitions are heard together and are being decided by this common order.
2: The facts as mentioned in this order are taken from Writ Petition No.5332/2010(S). The petitioners have come before this Court contending that they are the employees of Narmada Valley Development Authority (hereinafter referred to as NVDA for brevity), Bhopal, and are working on the post 2 of driver in the office of Executive Engineer NVDA, Bhopal. Though the petitioners have remained working for a long period of more than 20 years against the posts which were sanctioned and were lying vacant, but they are being discriminated in the matter of grant of minimum revised pay scale of the post which was directed to be granted to them way back in the year 2000 by the M.P. Administrative Tribunal, therefore, they are required to approach this Court by way of filing this writ petition. It is contended that when for a long period, the petitioners were not regularised or were not given the regular pay scale, different Original Applications were filed before the M.P. Administrative Tribunal. The said Original Application was registered as Original Application No.870/1999. In case of others Original Application No.869/1999 was filed. The said cases came up for hearing before the Tribunal on 15.12.2000. Considering the law laid down by the Tribunal in the case of Bharat Darshan Shrivastava and others Vs. State of M.P. And others [1998 MPLSR 278],the Tribunal categorically held that persons like petitioners could not be discriminated in the matter of grant of pay as they would be entitled to the minimum of the pay scale of the post against which they were working, along with all applicable allowances, but without benefit of increments. It is contended that such an order of the Tribunal had attained the finality. Accordingly, the petitioners were being paid the salary and allowances in the minimum of the pay scale as recommended by the Fifth Pay Commission, which were duly accepted by the State Government. The order passed by the Tribunal was not called in question, on the other hand, the same was complied with.
3: It is contended that now since there is a revision of the pay on account of accepting the recommendation of 3 the Sixth Pay Commission by the State Government, the petitioners would also get the monetary benefits in the minimum of the pay scale as revised by Sixth Pay Commission, duly accepted by the State Government and the allowances, sanctioned for the post against which the petitioners are working. However, despite making a demand such a benefit is not extended to the petitioners, therefore, they have come before this Court by way of filing this writ petition. The relief claimed by the petitioners in the writ petition is simply to grant the benefit of the order passed by the Tribunal with respect to the payment of wages on the minimum of the pay scale sanctioned for the post as revised under the recommendation of the Sixth Pay Commission and to pay the arrears of salary from the date, the said recommendation of Sixth Pay Commission was accepted by the State Government.
4: In response to the notice issued in the writ petitions, the returns have been filed by the respondents. It is contended that the petitioners are not said to be classified by the order of the Tribunal, they cannot be termed as classified employees and in view of the law laid down by the Apex Court since a decision is rendered by the Division Bench of this Court in the case of M.P. Urja Vikas Nigam Ltd. And others Vs. Rudra Prasad Mishra and other analogous matters, it is clear that the daily wager employees like petitioners are not entitled to the minimum of the pay scale of the post against which they are working. It is contended that in view of this specific law since there is no classification of the petitioners, they would not be entitled to the benefit of revised pay scale and, as such, the claim made in the petition is wholly misconceived. However, it is not disputed by the respondents that pursuance to the order passed by the Tribunal, the 4 petitioners were being paid the minimum of the pay scale of the post against which they were working, though in the prerevised rate.
5: Now the only controversy which is to be examined whether the refusal to grant the minimum of the pay scale after revision of the pay of the post on which the petitioners are continuing for a long period is justified or not, and whether in view of the law laid down by the Apex Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others [(2006) 4 SCC 1], it would be possible for this Court to grant such a relief to the petitioners, as has been considered by the Division Bench of this Court in the case of M.P. Urja Vikas Nigam Ltd.(supra). In the case in hand, the situation is totally different. At no point of time, it is contended or proved by the respondents that the petitioners were working as illegal appointees. The distinction between the two appointment, illegal appointment or irregular appointment has been drawn by the Apex Court in the case of Uma Devi (Supra). In case, in hand the work was available and obviously the same was available, the posts were created by the NVDA for appointment of drivers and others, but regular recruitment was not done, on the other hand, certain daily wages or fixed wages appointments were made by the NVDA. The respondents have not demonstrated that the appointment of petitioners were illegal in any manner. That being so, it cannot be said that the petitioners had no right to claim minimum of the pay scale of the post against which they were appointed. Secondly, when the matter went before the Tribunal, no plea was raised by the respondents that the persons like petitioners would not be entitled to benefit of minimum of the pay scale of the post against which they were working 5 for a long time. On the other hand, when the order was passed by the Tribunal to this effect, the respondent-State has accepted the same happily and has carried out and complied with the said order by extending the benefit of the minimum of the pay scale of the post as was prevalent at that time, with the allowances. This being so, it is not open to the State now to say that the petitioners would not be entitled to any benefit of revised payment of wages in the minimum of the pay scale of the post on which they are working for a long time.
6: The principle of classification of an employee on a post, as is envisaged in the Industrial Law is very simple. If an employee is said to have remained working in one calender year for 240 days or more on one post, he is said to be entitled for classification on the said post. If the persons like petitioners are continuing, it is very clear that the work is available. If the work is available and the posts are already sanctioned, the petitioners are said to be classified on the said post on account of their continuous long working for 20 or more years. Thus, the stand taken by the respondents that the petitioners would not be entitled to minimum of the pay scale of the post against which they are working, cannot be accepted. The factual aspect is distinguishable than that of the facts in the case of M.P. Urja Vikas Nigam Ltd. (supra). The very same principle would not be attracted in the present case.
7: If the persons like petitioners were granted the benefit of minimum of the pay scale with the allowances, applicable on the post on which they are working, how could it be said that they will not be entitled to the revision of the pay scale if the pay of the said post is revised by the State Government accepting the recommendation of the 6 Sixth Pay Commission. The order of the Tribunal is clear. It nowhere says that the persons like petitioners would be entitled to only minimum of the pay scale as is prevalent on the date and they will never get benefit of revision of the pay scale. The only rider put by the Tribunal is that the petitioners would not get the increments of pay. This being so, the respondents are bound to extend the benefit of revision of the pay, applicable to the post on which the petitioners are working. Consequently, the petitioners will get the benefit of minimum of the revised pay scale and allowances of the posts against which they are working, as has been accepted by the State Government on the basis of recommendation of the Sixth Pay Commission. The same would be applicable to the persons like petitioners from the date the revision of pay scale has been done. The admissible amount is to be calculated and is to be paid to the petitioners.
8: Resultantly, the writ petitions are allowed. The respondents are directed to grant benefit of revision of the pay scale on the recommendation of Sixth Pay Commission to the petitioners. The minimum of the pay scale as revised from time to time be paid to the petitioners along with the admissible allowances, from the date the said revision has been accepted by the State Government. The arrears of salary be calculated and be paid to the petitioners, within three months from the date of receipt of certified copy of the order passed today.
9: With the aforesaid directions, the writ petitions stand disposed of finally. There shall be no order as to costs.
(K.K. TRIVEDI) Judge 03/07/2012 7 A.Praj.
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No. Vs. ORDER Post it for /7/2012 8 (K. K. Trivedi) Judge /07/2012