Madhya Pradesh High Court
Rameshwar Prasad Ahirwar vs The State Of Madhya Pradesh on 27 January, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION NO. 2298 OF 2021.
RAMESHWAR PRASAD AHIRWAR & OTHERS
VS.
STATE OF MADHYA PRADESH & OTHERS.
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Appearance:
Shri K.C. Ghildiyal, Senior Advocate with Ms. Warija Ghildiyal - Advocate for the petitioners.
Shri Vijay Kumar Shukla- Panel Lawyer for the respondent- State.
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(O R D E R)
(Reserved on : 11/12/2024)
(Pronounced on : 27/01/2025)
The present petition has been filed seeking the following reliefs:-
(i) The Hon'ble court may be pleased to issue a writ order or direction in the nature of mandamus thereby directing the respondents to regularize the services of the petitioners on any Class-IV posts from the date when the petitioners completed 10 years service as part-time employee (sweeper) with all consequential benefits such as arrears of salary, seniority, continuity in service, pension etc.
(ii) Any other appropriate writ order or direction which this Hon'ble Court may deem just and proper in the nature and circumstances of the case including cost of the litigation
2. The petitioners before this Court in the present petition were initially appointed as part time sweepers in various dispensaries of the Veterinary Department. It is the contention of the petitioner that they Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 2 have been working since many years as mentioned in para 5.1 of the present petition, till date. It is the case of the petitioners that they were appointed as part-time sweepers but in fact the work which was being taken from the petitioner is regular work and the work is perennial in nature. Therefore, the petitioners need to be considered for regularization on any class-IV post upon completion of 10 years of service as part time sweepers with all consequential benefits.
3. The learned counsel for the petitioner has argued that the petitioners were engaged in Veterinary Department from various dates as part-time sweepers and that the nature of work taken from the petitioners was perennial. It is contended that as per the statutory rules applicable in the department known as M.P. Veterinary Department Contingency Paid Employees (Recruitment & Conditions of Service) Rules, 1979, there are regular posts of sweepers which are 478 in number and the same posts are laid down in the amended schedule to the said rules as per amendment notification dated 18/09/2009, both of which are part of Annexure R/1 filed with the reply of the respondents. The learned counsel for the petitioner further argued that as the sanctioned posts in the department were filled up, therefore, when the new dispensaries were opened in the department after the year 1979, for such requirement of work part-time sweepers were appointed in the name of part-time engagement whereas work of sweepers in Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 3 dispensaries is perennial in nature. By placing reliance on document Annexure R/2 dated 26.10.2010 it was vehemently argued by learned counsel for the petitioner that system of engagement on part-time basis was put into place only looking to the position that a total of 92 new veterinary dispensaries were opened between years 1998-1999 and for that purpose the petitioners were engaged as part-time sweepers. It is argued that there is no difference between the duties being carried out by the petitioners and the duties being carried out by the regular sweepers working on sanctioned 478 posts in the department. It is contended that these cannot be any discrimination in the matter that when existing dispensaries are being looked after by regular or work charge sweepers under the Rule of 1979 but when new dispensaries are opened, they will be looked after by part-time sweepers, though the work of sweepers in the dispensaries opened prior to 1998-1999 and after 1998-1999 is same without any difference being there. Thus, it is contended that this Court should lift the veil of artificial discrimination which has been carried out by artificially describing the petitioners as part-time sweepers. It is the case of the petitioner that many of 478 sanctioned posts are now vacant and the petitioners having put in 25 to 35 years of services should be considered for regularization in terms of the policy of the State Government dated 16.05.2007 which has been issued in terms of directions of the Supreme Court contained in para 53 of the judgment in Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 4 the case of Secretary, State Of Karnataka And others vs Umadevi And Others, 2006(4)SCC 1.
4. Learned counsel for the petitioner also relied on para 49 of the judgment in the case of T.N. Terminated Full Time Temporary LIC Employees Association Vs. Life Insurance Corporation of India and Others (2015) 9 SCC 62 to contend that the work of Sweepers is a perpetual and perennial nature of the work. The reliance was also placed on the judgment of the Supreme Court in SLP(C) No. 6427/2019 (Ushaben Joshi vs Union Of India) so also the judgment in the case of Mahanadi Coalfields Ltd. vs Brajrajnagar Coal Mines Workers Union(Civil Appeal No. 4092-4093/2024) passed by the Supreme Court.
5. Per contra, the counsel for the State has vehemently opposed the present petition by arguing that there is no sanctioned posts of part-time sweepers in the department and the petitioners who are working as part- time sweepers cannot claim to be considered for regularization against the post of regular sweeper. It is further argued that the cases of similarly situated persons were rejected by the Division Bench of this Court in W.A. No. 68/2020 (State of Madhya Pradesh & others Vs. Bhaiyalal Bhasore and another).
6. Heard.
Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 5
7. In the present case it is the categorical case of the petitioners that they have been performing the work of perennial nature which is also full time in nature because there is no difference in the work being performed by the petitioners which is same as the work that is to be performed by the full time sweepers of 478 sanctioned posts. It is the case of the petitioners that letter dated 26.10.2010 issued by Director, Veterinary Services, M.P. also shows that the petitioners are meant for working in the newly opened dispensaries and in place of sanctioning additional posts for those dispensaries, the respondents have engaged sweepers by describing them as part-time sweepers. There seems to be some force in the contention of the petitioners by perusal of the order Annexure R/2 dated 26.10.2010 that for performing the work of sweepers in the newly opened dispensaries, part-time sweepers were engaged. In the entire reply so also during the course of oral arguments, the respondents have not been able to distinguish between the work which is to be performed by Sweepers working against 478 sanctioned posts as compared to the work which is to be performed by the petitioners being part-time sweepers. The Division Bench of this Court in WA No. 68/2020 was considering the case of part-time sweepers who had earlier filed a writ petition and their representation had been turned down and then they had filed a fresh petition challenging the rejection of representation. The Division Bench has held that there can be no Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 6 presumption that the engagement of the petitioner therein was on cadre post and that there was no up-gradation of the employees therein on the post of full time sweeper.
8. Learned counsel for the petitioner had relied on judgment of Supreme Court in the case of Mahanadi Coalfields Ltd. (supra) wherein the Supreme Court has considered the position that some of the workmen who were also performing work of perennial nature were not made part of the settlement and the employer had failed to establish any distinction between two sets of duties. Under these circumstances, the Supreme Court held that there is some artificial distinction between two sets of workers and granted relief to the workman therein. The said case emanated from Industrial Tribunal and it was established on facts that two sets of the workmen doing the same nature of work and the work was of perennial nature and was not casual in nature.
9. In the present case, the said question cannot be adjudicated by this Court on the basis of existing material the State has not come out with complete facts in its reply. Only on the basis of appointment order, the petitioners are being projected as part-time Sweepers.
10. In the obtaining circumstances, this court directs the respondents to file specific affidavit as to how the nature of duties of the petitioners are different as compared to the nature of duties of the sweepers who are working against 478 sanctioned posts in the department and in what Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM 7 ground the petitioners are termed as part-time sweepers and they shall delineate the distinction between the duties to be performed by the petitioners and by the sweepers working against the 478 sanctioned posts.
11. Let the affidavit be filed within four weeks, failing which respondent No. 2 shall remain presetn before this Court. .
12. List on 05/03/2025.
(VIVEK JAIN) JUDGE MISHRA Signature Not Verified Signed by: 453 Signing time: 1/27/2025 5:13:34 PM