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Madhya Pradesh High Court · body

2009 DIGILAW 1386 (MP)

Ramswaroop Shrivas v. State of M. P.

2009-12-17

S.C.SHARMA

body2009
ORDER 1. The petitioner before this Court has filed this present writ petition claiming salary of post of Clerk. His contention is that he was appointed on 27.2.1986 as daily wager and one Ku. Mamta Bhadoriya was appointed on 3.9.1986. The petitioner has further stated that he has been classified as permanent by an order dated 15.10.2004. The petitioner has also stated that a list was prepared by the respondents of the daily wagers wherein his name finds place at serial No.6 and the date of appointment is 27.2.1986. He has further stated that in the same list the date of appointment of Ku. Mamta Bhadoriya is 03.09.1986. The petitioner has further stated that Ku. Mamta Bhadoriya was also classified as permanent. The petitioner has further stated that by an order dated 7.5.2005 Ku. Mamta Bhadoriya has been extended the benefit of regular pay scale whereas the benefit of regular pay scale has not been extended to the petitioner. His grievance is that he is identically placed person like Ku. Mamta Bhadoriya and he was appointed much prior to her and therefore he is also entitled the same benefit which has been conferred to Ku. Mamta Bhadoriya. 2. A reply has been filed on behalf of the respondents and it has been stated that the petitioner was initially appointed as daily wager and a writ petition was preferred on behalf of daily wagers before this Court which was registered as W.P. No. 894/2004 (Nirman Karamchari Vyavsayua Sangh, Gwalior v. State of M.P. & Others.) The same was decided on 14.8.2002. This Court while deciding the aforesaid case has directed the Labour Commissioner, Government of Madhya Pradesh, Indore to take appropriate action in the matter and thereafter, an order was passed by the State of Madhya Pradesh classifying the petitioner as permanent. The respondents have stated that Annexure P11 dated 15.10.2004 has been passed as per the provisions of Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 and the petitioner is being paid wages accordingly. Not only this, the respondents have further stated that the petitioner is not eligible for holding the post of clerk as the minimum qualification required for the post of clerk is Higher Secondary and a person must have passed typing examination also. The respondents have further stated that the benefit of regular pay scale has been extended to Ku. Not only this, the respondents have further stated that the petitioner is not eligible for holding the post of clerk as the minimum qualification required for the post of clerk is Higher Secondary and a person must have passed typing examination also. The respondents have further stated that the benefit of regular pay scale has been extended to Ku. Mamta Bhadoriya on account of an order passed by the apex Court in SLP No. 921/2004 decided on 6.2.2004. The respondents have prayed for dismissal of the present writ petition. 3. Heard learned counsel for the parties at length and perused the record. 4. In the present case, the petitioner a daily wager, appointed on 27.2.1986 has been classified as permanent by the respondents by an order dated 15.10.2004. The respondents have also extended the benefit of regular pay scale to Ku. Mamta Bhadoriya though the same has been done by virtue of the orders passed by the apex Court in SLP No. 921/2004. The petitioner before this Court is claiming regular pay scale from the date of classification. This Court while dealing with an identical situation in W.P. No. 2508/2004 (S) has held that an employee classified under the M.P. Industrial Employment (Standing Orders) Rules, 1963, is entitled to the pay scale of permanent post, though in the aforesaid case the employee was classified on the post of Chowkidar. Rule 2 of the standing order reads as under: "2. Classification of Employee - Employees shall be classified as - (i) permanent (ii) permanent seasonal, (iii) probationers, (iv) Baadlies (v) apprentices and (vi) temporary: (i) A 'permanent employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee; (ii) A 'permanent seasonal employee' is an employee who has completed service for a period equal to 2/3 of the duration or a season or three months whichever is less in a clear vacancy and shall be deemed to be a permanent employee for the purposes of these orders. (iii) A 'probationer' means an employee who is provisionally employed to fill a clear vacancy, and who has not completed six months satisfactory service in the aggregate; (iv) A 'badli' employee means an employee who is employed on the post of a permanent employee, or a probationer or a permanent seasonal employee who is temporarily absent; (v) An 'apprentice' means a learner; provided that no employee shall be classified as an apprentice if he has had training for an aggregate period of one year; provided further that a longer period of apprenticeship shall be required if prescribed by a law or an award, or by agreement with the representative of employees; (vi) 'temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above." 5. From bare perusal of the aforesaid statutory provision, it is evident that once a person is classified, he is entitled for certain benefits and as the petitioner has been classified he is entitled for pay scale of the post of Sub-Engineer. A similar view has been taken by this Court in the case of State of Madhya Pradesh & others v. Hariram and others 2008 (3) MPHT 274 and this Court in the aforesaid case has held as under:-- The aforesaid point has already been answered by the learned Single Judge of this Court in Engineer-in-Chief, PHED and others v. Budha Rao Magarde and others, 2002 (1) MPLJ 385 , where learned Single Judge has held as under :- "12. The next contention of the learned Government Advocate is that clauses (i) and (vi) of SSO 2 merely confer a status without any corresponding obligation to pay them wages or salary in the regular pay scale of the posts. Learned Government Advocate has proceeded further to submit that by acquiring a status, a person gets apprised of the nature of the duties that he is required to discharge as employee engaged on daily wages can, without such status, be employed in different sections. Learned Government Advocate has proceeded further to submit that by acquiring a status, a person gets apprised of the nature of the duties that he is required to discharge as employee engaged on daily wages can, without such status, be employed in different sections. It is difficult to comprehend that a person acquires permanent status only as a 'tag' without attendant benefit of salary of the posts relating to the nature of the work carried out by such an employee. In the present case each of the employees has specifically referred to the work of the service rendered by him in connection with a post. To illustrate, in W.P. No.3510/2000 the claim of the employee was that he was working as a Lab Assistant while in W.P. No. 3056/2000 the claim was that the employee was working on the post of Sweeper. Thus, specific duties performed relating to specific posts were duly pleaded and not specifically denied. Such a status acquired by an employee does not give him any other advantage except the advantage of pay in MPSRTC v. Harish (supra), itself in conferral of the deeming status of permanent employee, direction for payment of salary on the post was made which indicates that it goes without saying that when a person acquires a permanent status, he automatically becomes entitled to the salary of the said post. In State of M.P. v. Ram Prakash (supra) the observations of the Division Bench which are relevant in this context read as extract below: "12. For all the foregoing reasons, we have no hesitation to hold that our interference with the order or award passed by the Labour Court on 25.6.1987 (Annexure-P/3) is not warranted, the claim of the respondent being legally as also constitutionally justified, whether in Surendra Kwnar Saxena or Brij Kishore Sharma (supra) would not, in terms, apply to respondent's case for that reason. His entitlement would also be so determined (under the "Annexure" of 1963 Rules) in respect of his claim for being treated as permanent employee. Therefore, he would be entitled to be paid not only the minimum of salary in the pay scale applicable to Lower Division Clerks/Typist appointed on regular basis, he would rather be entitled to be paid salary in the pay scale applicable to them. Therefore, he would be entitled to be paid not only the minimum of salary in the pay scale applicable to Lower Division Clerks/Typist appointed on regular basis, he would rather be entitled to be paid salary in the pay scale applicable to them. In other words, he would also be entitled to increments envisaged under that pay scale because we have held that he is entitled to be endowed with the status of a "permanent employee" in terms of the statutory provisions aforesaid. " From the above decision it is clear that once an employee acquires the status of permanent employee he is required to be paid the salary/ wages of the post and he cannot be continued on the wages on which he had initially been appointed or continued till he had become permanent." Learned Division Bench of this Court in Vandana Singh (Smt.) v. Steel Authority of India Ltd. and another, 1993 JLJ 55 has held as under with regard to entitlement of pay scale: "In the result, the petition is allowed with costs. The petitioner is declared as a regular and permanent employee, who shall be entitled to the pay scale of Rs. 1425-2205 from 20.2.1990 with regular increments and all ancillary benefits attached to the post. The difference of salary shall be payable to petitioner only from 20.2.1990. Respondents to pay the costs of petitioner in this petition. Counsel's fee Rs. 1,000/- if already certified. 10. On the basis of above principle of law laid down in the afore mentioned decisions of this Court it is clear that upon classification an employee is entitled to get the pay scale of the post on which he has been classified as permanent. 11. The judgments relied upon by the learned Deputy Advocate General are with regard to the right of an employee to be classified under the provisions of certified Standing orders and the powers of the Court. That point is not involved in the present case. The point involved in the present case is that the respondent has already been classified and ordered for payment of regular pay scale of the post. 6. The case of the petitioner is covered by the judgment delivered by this Court in the case of Hariram (supra) and therefore, the petitioner is also entitled for the same relief as has been extended by this Court in the aforesaid judgment. 7. 6. The case of the petitioner is covered by the judgment delivered by this Court in the case of Hariram (supra) and therefore, the petitioner is also entitled for the same relief as has been extended by this Court in the aforesaid judgment. 7. Resultantly, the petition is allowed. As the petitioner has approached this Court belatedly, he will be entitled for the arrears of salary in the pay scale w.e.f from the date of filing of the present petition, i.e. 29.6.2005, however, he shall be entitled for the notional fixation of the pay scale from the date he has been classified as by the respondents vide order dated 15.10.2004. 8. With the aforesaid observation this present writ petition stands allowed and disposed of. No order as to costs.