Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1430 (MP)

Nanadram Kushwah v. State of M. P.

2011-12-16

M.C.GARG, PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2011
ORDER Kemkar, J. -- 1. This Full Bench has been constituted by Hon’ble the Chief Justice on a reference under Chapter 4 Rule 8(1) of the M.P. High Court Rules, 2008 being made by the learned Single Judge of this Court, for answering the following issues : “(1) Whether the earlier circulars issued by the State Government in the matter of grant of pay-scale and regularisation, prior to the delivery of the judgment in the case of Umadevi v. State of Karnataka [ (2006)4 SCC 44 ], are still in existent or not and the benefit can be granted to an employee on the basis of earlier circulars in the matter of grant of regular pay-scale on completion of 5 years of service. (2) Whether an employee can still be granted regular pay-scale in the light of the circulars issued by the State Government dated 16.5.2007 and 8.2.2008 issued pursuant to the judgment delivered by the apex Court in the case of Umadevi v. State of Karnataka (supra). (3) Whether the judgment delivered by the learned Single Judge in the case of Baliram Baghel, affirmed by the Division Bench is still holding the field in the matter of grant of regular pay-scale, even after the delivery of the judgment of the apex Court in the case of Umadevi v. State of Karnataka (supra).” 2. It has been contended by the learned senior counsel for the petitioner that the questions which have been referred for decision by this Full Bench are not arising out of the matter in view of the fact that before the learned Single Judge the question was not regarding the regularisation of the petitioner but was regarding non-payment of monetary benefits of pay-scale on regularisation. He submitted that the question of regularisation of the petitioner had already attained finality in favour of the petitioner in view of the judgment passed by the learned Single Judge in Writ Petition No.9417/09 (s), decided on 13.1.2011 and the same having been affirmed in Writ Appeal No.391/11, vide order dated 27.8.2011 passed by the Division Bench. 3. In order to appreciate the submission made by learned senior counsel for the petitioner, we have gone through the record. 3. In order to appreciate the submission made by learned senior counsel for the petitioner, we have gone through the record. After a close scrutiny of the earlier orders passed by this Court in petitioner’s own case, we find that earlier when the petitioner’s regularisation was cancelled he had filed a Writ Petition No.226/09 (s) before this Court. The said writ petition was disposed of by Single Bench of this Court in 20.2.2009 by quashing the order dated 8.10.2004 by which the regularisation order was cancelled, with liberty to the respondents to challenge the fresh order which was passed after issuing show cause notice and affording opportunity to the petitioner. The relevant paragraph of the order dated 20.2.2009 passed in Writ Petition No.226/2009 (s) reads thus : “Having considered the contentions raised by learned counsel for the parties, I am inclined to quash the impugned order dated 8.10.2004 as has been quashed in the case of similarly situated employees. However, since the respondents have already passed a fresh order after issuing show cause notice and affording opportunity of hearing to the petitioner no further show cause notice and opportunity of hearing is required. It will be open for the petitioner to challenge the order which has been now passed by the respondents. Needless to say that as ordered in the earlier order in case of Jeeva Rathore (supra), the petitioner would also be entitled for the benefit accrued to him from the order dated 14.9.1996 till the date when the respondents have taken the fresh decision as aforesaid.” 4. The aforesaid order dated 20.2.2009 passed in Writ Petition No.226/09 (s) was challenged by the respondents-State in Writ Appeal No.418/09. The said appeal was dismissed by a Division Bench of this Court in view of the various earlier orders passed in the matter. 5. The fresh order of which mention is made in the aforesaid order cancelling the petitioner’s regularisation was challenged by the petitioner in Writ Petition No.9417/2009 (s). The said writ petition was decided on 13.1.2011 by the learned Single Judge. The learned Single Judge taking note of the relevant facts as also the various orders passed by this Court from time to time including the orders passed in identically placed employees, passed following order in favour of the present petitioner : “15. The said writ petition was decided on 13.1.2011 by the learned Single Judge. The learned Single Judge taking note of the relevant facts as also the various orders passed by this Court from time to time including the orders passed in identically placed employees, passed following order in favour of the present petitioner : “15. In the present case, the petitioner as he was also a beneficiary of order dated 14.5.1996 submitted a representation before the respondents and as nothing was being done in the matter of grant of regular pay-scale keeping in view the judgment delivered by this Court in the case of Baliram Baghel, the petitioner was left with no other choice except to approach this Court. The present petitioner preferred a writ petition, i.e., Writ Petition No.226 of 2009 (s) and the same was disposed of by this Court by an order dated 20.2.2009. This Court while quashing order dated 8.10.2004 also observed that the petitioner would be entitled for the benefits accrued to him by virtue of order dated 14.5.1996 till the fresh decision is taken in the matter and as the order passed by the learned Single Judge was not complied with a contempt petition was also preferred and the same was disposed of by an order dated 21.12.2009 and time was granted to respondents-contemnors therein to pass appropriate order in the matter. The respondents-State has thereafter issued a show cause notice and finally has passed the impugned order dated 17.12.2008, by which earlier order passed by respondents dated 14.5.1996 has been withdrawn. 16. This Court has carefully gone through the order dated 14.5.1996 as well as order dated 17.12.2008 and the order dated 14.5.1996 reveals that cases of those employees who have completed 5 years’ service in the contingency establishment were considered for grant of regular pay-scale in the light of circular dated 17.3.1978 and as many as 68 persons were granted regular pay-scale including the petitioner along with Shri Baliram Baghel, petitioner of Writ Petition No.1512 of 2004. The petitioner at the relevant point of time was having 5 years’ of experience and he was granted regular pay-scale and not the benefit of regularisation. The petitioner at the relevant point of time was having 5 years’ of experience and he was granted regular pay-scale and not the benefit of regularisation. The lelarned counsel for the petitioner confined his prayer in the present writ petition for grant of regular pay-scale as has been granted to Shri Baliram Baghel by virtue of order dated 14.5.1996 and has also reserved his right to take appropriate action in accordance with law for ventilating his grievance in respect of regularisation. 17. This Court has carefully gone through impugned order dated 17.12.2008 (Annexure P-9) as well as Annexure R-3 issued by General Administration Department. Annexure R-3 nowhere reflects that the earlier circular of the State Government dated 17.3.1978 has been withdrawn. The circular of General Administration Department dated 9.1.1990 imposes a ban in respect of appointment of contingency paid employees in a establishment where no sanctioned post is available. It does not deal with grant of regular pay-scale at all and the fact remains that identically placed persons have been granted regular pay-scale by virtue of various orders passed by this Court from time to time including Shri Baliram Baghel, petitioner of Writ Petition No.1512 of 2004. 18. This Court is of the considered opinion that as the name of the petitioner was also included in the order dated 14.5.1996 along with Baliram Baghel, therefore, he cannot be discriminated in the matter of grant of regular pay-scale as has been granted to Shri Baliram Baghel and other identically placed persons and, therefore, once the benefit has been extended to identically placed persons and they are enjoying the regular pay-scale, there appears to be no justification in denying the benefit of regular pay-scale to the present petitioner. Resultantly, the impugned order dated 17.12.2008 is hereby quashed.” 6. Feeling aggrieved by the aforesaid order dated 13.1.2011 passed in Writ Petition No.9417/2009 (s) a Writ Appeal No.391/2011 was filed by the respondents-State. The said writ appeal was dismissed by a Division Bench of this Court vide order passed on 27.8.2011 keeping in view the detailed order passed in Writ Appeal No.85 of 2011, Dhanubai v. State of M.P.. 7. It is pertinent to mention that on account of non-compliance by the State Government of the order dated 20.2.2009 passed in Writ Petition No.226/09 (s), the petitioner filed a Contempt Petition No.743/09. 7. It is pertinent to mention that on account of non-compliance by the State Government of the order dated 20.2.2009 passed in Writ Petition No.226/09 (s), the petitioner filed a Contempt Petition No.743/09. The said contempt petition and the connected contempt petitions filed by others alleging identical non-compliance were disposed of by the learned Single Judge vide order dated 18.11.2009. The operative paragraph of the said order passed in Contempt Petition No.743/2009 reads thus : “In the facts and circumstances of the case, this petition and all the connected petitions are disposed with a direction that the petitioners shall submit the bunch of all the petitions along with copy of the order passed today to the competent authority in person under an acknowledgment and it will be the duty of the competent authority to pass an appropriate order by giving the monetary benefits to the petitioner within a period of two months. It will also be the duty of the competent authority not to make any discrimination. If the competent authority is of the view that the petitioner is not entitled to the monetary benefit, then a reasoned order has to be passed by the competent authority. In case of failure on the part of the competent authority in compliance of the order passed by this Court, the competent authority shall be liable for payment of interest @ 12% per annum which shall be payable personally by the defaulting officer.” 8. Thereafter in the garb of the directions contained in para 5 of the order dated 18.11.2009 passed in Contempt Case No.743/09 the respondents passed an order dated 26.2.2010 and instead of extending the monetary benefits and the fruits of the earlier order passed by this Court in Writ Petition No.226/2009 held that the petitioner is not entitled for regular pay-scale and arrears on his completion of 5 years of service. It is this order dated 26.2.2010 passed in the garb of the compliance of the directions contained in the contempt petition, has been challenged by the petitioner in Writ Petition No.3744/10 (s). 9. From the aforesaid background facts, it is clear that the petitioner’s entitlement for grant of monetary benefits during the period from 14.5.1996 till passing of the fresh order (17.12.2008) was already crystalised by the order passed by the learned Single Judge in Writ Petition No.226/2009. 9. From the aforesaid background facts, it is clear that the petitioner’s entitlement for grant of monetary benefits during the period from 14.5.1996 till passing of the fresh order (17.12.2008) was already crystalised by the order passed by the learned Single Judge in Writ Petition No.226/2009. The said order was also affirmed by the Division Bench in Writ Appeal No.418/09. As regards the cancellation of regularisation order dated 17.12.2008, the same was also quashed by the learned Single Judge in Writ Petition No.9417/2009 (s), decided on 13.1.2011 which was also affirmed by the Division Bench in Writ Appeal No.391/2011. 10. In the circumstances, in our considered view in this Writ Petition No.3744/10 (s) the only question which is required to be decided by the learned Single Judge is as to whether after passing of the order in Writ Petition No.226/2009 holding the entitlement of the petitioner to get the monetary benefits from 14.5.1996 to the date of passing of the fresh order (17.12.2008) which has also been affirmed by the Division Bench in Writ Appeal No.418/2009, whether it was open for the respondents to have passed a fresh order dated 26.2.2010 denying the said benefit to the petitioner in the garb of the order passed in Contempt Petition No.743/2009. 11. Thus, we find all the three questions referred to this Full Bench are not involving in the proceeding pending before the learned Single Judge. In the circumstances, holding that the questions referred are not arising out of the proceedings pending before the learned Single Judge, we feel that they need not to be answered only for the academic purpose, and we do so. 12. In view of the aforesaid let the matter be now listed before the learned Single Judge for further orders. .............