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Madhya Pradesh High Court · body

2014 DIGILAW 1436 (MP)

Phoola v. State of M. P.

2014-11-07

SUJOY PAUL

body2014
ORDER 1. This petition filed under Article 226 of the Constitution challenges the order dated 30.4.2012, whereby the petitioner, who was classified as permanent employee, is retired on attaining 60 years of age, by treating him as a daily wager. Assailing this order, it is submitted that the curtains on this issue are finally drawn by this Court in WP No.1562/2012 (Ramdeen v. State of M.P. and others), decided on 24.7.2012. 2. Smt. Nidhi Patankar, learned Government Advocate opposed the relief by submitting that the question of pay scale on classification is subject matter of challenge before Supreme Court. In addition, she relied on Clause 14-A of the Standard Standing Order (SSO). 3. I have heard the learned counsel for the parties and perused the record. 4. A bare perusal of order, Annexure P/2 dated 7.8.2006 shows that the petitioner was classified as permanent employee by the department itself. The question is, once the petitioner attains the status of permanent employee, whether he can be retired at the age of 60 years by treating him as daily wager ? The second question is whether Clause 14-A of SSO will apply in this matter ? 5. This Court in Ramdeen (supra) opined as under :- “12. In the considered opinion of this Court, once the petitioner is classified as permanent employee as per the Act and Rules, he cannot be discriminated qua directly appointed permanent employee. Once petitioner is classified as permanent employee, he is entitled to enjoy the benefits attached to a permanent post. His birth mark or source of induction has no relevance after getting the permanent status. Any other interpretation will lead to an anomalous situation. This will create a class within the class viz (1) directly appointed as permanent employee (2) permanent by way of classification. This would be an artificial classification without there being any justification for the same. A homogeneous class would be divided by creating a class within the class. It will hit Article 14 of the Constitution. The said artificial classification without there being any rational for the same cannot pass the litmus test laid down while interpreting Article 14 of the Constitution. Thus, this argument is rejected. 13. A homogeneous class would be divided by creating a class within the class. It will hit Article 14 of the Constitution. The said artificial classification without there being any rational for the same cannot pass the litmus test laid down while interpreting Article 14 of the Constitution. Thus, this argument is rejected. 13. So far, the question whether provisions of the Adhiniyam or Rule 14-A of the Rules of 1963 will prevail, it is profitable to quote section 2(2) of Act of 1961:- “2(2) Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control, and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other rules or regulations that may be notified in this behalf by the State Government in the Official Gazette apply.” 14. This is not disputed by the learned counsel at the Bar that for permanent employee of the respondent department the provisions of Fundamental and Supplementary Rules, Civil Services (Classification, Control, and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations etc. are applicable. Since, admittedly, the said rules are applicable, therefore, by operation of section 2(2) aforesaid of the Act of 1961, the rules will have no application on the permanent employees. This question is no more res integra and was considered by the Supreme Court in (2004) 9 SCC 755 (M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board). In para 30 and 31, the apex Court opined that when the aforesaid rules are applicable, it excludes the operation of 1961 Act. It is noteworthy that the said case was arising out of service dispute of the employee of Madhya Pradesh Electricity Board. In the Board the Fundamental and Supplementary Rules, Civil Services (Classification, Control, and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations etc. are not automatically applicable and therefore, the apex Court opined that on publication of appropriate notification in terms of section 2(2) of 1961 Act, the Standing Order will stand excluded. However in the present case, the aforesaid rules mentioned in section 2(2) are admittedly applicable for the permanent employee of the respondent-department, and therefore, by operation of section 2(2), the Standing Order Act and Rules shall not apply. Consequently, Rule 14-A will have no application. However in the present case, the aforesaid rules mentioned in section 2(2) are admittedly applicable for the permanent employee of the respondent-department, and therefore, by operation of section 2(2), the Standing Order Act and Rules shall not apply. Consequently, Rule 14-A will have no application. Hence, the Adhiniyam alone will govern the field for permanent employees. The Adhiniyam quoted above shows that the age of retirement for permanent employee is 62 years. Even otherwise whenever there is a conflict between Act and Rules, it is always provision of Act which will prevail over a provision of rule. Examining it from any angle, it would be clear that the age of superannuation for permanent employee is 62 years.” In para 18 of the aforesaid judgment, this Court opined as under :- “18. On the basis of aforesaid analysis, petitioners are entitled to continue till attaining the age of 62 years with all benefits. Impugned orders in these matters, whereby they are still treated as daily wager are arbitrary and capricious in nature. The said impugned orders are set aside. The petitioners shall be entitled to continue till 62 years with all benefits. However, the order passed by this Court would be subject to the outcome of the matters pending before the apex Court.” 6. It is relevant to mention here that the common order of Ramdeen (supra) was passed, whereby various writ petitions including WP No.2542/2012 (Raghuveer v. State of M.P.) and WP No.4194/2012 (Chandan Singh Sharma v. State of M.P.) were also decided. Writ Appeal No. 769/2012 against the order passed in WP No.4194/2012 and Writ Appeal No.744/2012 against the order passed in WP No. 2542/2012 were dismissed. The order passed in Writ Appeal No.744/2012 is not interfered with in SLP (Civil) No.37436/2013. This SLP is dismissed on 25.11.2013. 7. The present petitioner is similarly situated. Accordingly, he is entitled to succeed like Ramdeen. 8. Resultantly, the impugned order is set aside. Petitioner is entitled to continue up to 62 years of age with all consequential benefits. Petition is allowed. No costs. D. P. Singh for petitioner; Smt. Nidhi Patankar, Government Advocate for respondents/State. ..............