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Madhya Pradesh High Court · body

2017 DIGILAW 401 (MP)

Dhaniram Luhar v. State of Madhya Pradesh

2017-03-23

SANJAY YADAV

body2017
JUDGMENT : Sanjay Yadav, J. This order shall govern final disposal of above-mentioned writ petitions. Petitioners engaged on daily wages on muster roll, take exception to orders retiring them on attaining the age of sixty years. 2. It is not in dispute that the Executive Council of the respondent-University in its meeting held on 27.5.1999, resolved to raise the age of retirement of its Class IV employees from 60 to 62 years and vide approval of said resolution by the Coordination Committee vide resolution dated 5.10.1999 and the notification dated 8.3.2002, the retirement age of Class IV employees of respondent-University has been raised from 60 to 62 years w.e.f. 1.1.2002. 3. It is also not disputed that with the enactment of Central University Act, 2009 (for brevity 2009 Act'), the status of respondent-University has been converted from State University to Central University. 4. That, Clause (d) of Section 4 of 2009 Act protects the service condition of existing employees in the following terms: "(d) every person employed by Guru Ghasidas Vishwavidyalaya Doctor Harisingh Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University, immediately before the commencement of this Act shall hold his office or service in Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University, respectively, established under this Act by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave gratuity, provident fund and other matters as he would have held the same if this Act had not been enacted and shall continue to do so unless and until his employment is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Statues: Provided that if the alteration so made is not acceptable to such employee , his employment may be terminated by the University in accordance with the terms of the contract with the employee or, if no provision is made therein in this behalf, on payment, to him by the University, of compensation equivalent to three months' remuneration in case of permanent employees and one months' remuneration in the case of other employees. Provided further that every person employed before the commencement of this Act, pending the execution of a contract under Section 33, shall be deemed to have been appointed in accordance with the provisions of a contract consistent with the provisions of this Act and the Statues: Provided also that any reference, by whatever form of words, to the Vice Chancellor and Pro-Vice Chancellor of Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya or Hemvati Nandan Bahuguna Garhwal University, in any law for the time being in force, or in any instrument or other document, shall be construed as a reference to the Vice Chancellor and the Pro Vice Chancellor of Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya or Hemvati Nandan Bahuguna Garhwal University as the case may be established under this Act;" 5. The respondents, however, submit that the petitioners being daily wagers are not the holder of post in Civil Service as would entitle them for enhanced age of retirement. 6. Countering the contention, it is urged on behalf of petitioners that having being equated with Class IV employees, petitioners cannot be deprived of age of retirement as 62 years. Reliance is placed on the decision in Mohammad Mubeen v. Dr. Hari Singh Gaur Vishwavidyalaya, W.P. No.5437/2010 and batch of writ petitions connected therewith decided on 22.09.2011 and a Full Bench decision of our High Court in Vishnu Mutiya v. State of M.P. (2006) 1 MPLJ 23 to bring home submissions that a person engaged on muster roll is Class IV. 7. In Mohammad Mubeen (supra), it is held : 14. As far as the third ground is concerned respondents have only stated that the petitioners are not casual employees and therefore, they are not entitled to the benefit granted to the casual employee in their establishment. No where in the return have the respondents brought to the notice of this Court as to what is the difference between a casual employee and a daily wages employee. In W.P. No.4466/2010(s) petitioner has placed on record a Circular issued by the Government of India i.e. Government of India, Department of Personnel and Training OM No.49014/2/86 dated 7th June 1988 and Ministry of Labour OM No.53202/16/86-W.C. (M.W.) dated 23.08.88. In W.P. No.4466/2010(s) petitioner has placed on record a Circular issued by the Government of India i.e. Government of India, Department of Personnel and Training OM No.49014/2/86 dated 7th June 1988 and Ministry of Labour OM No.53202/16/86-W.C. (M.W.) dated 23.08.88. These Circulars have been issued after a judgment was delivered by the Supreme Court on 17.01.1986 in the case of Surendra Singh v. Union of India laying down certain principles for payment of "equal pay for equal work". In these circulars certain guidelines have been laid down and petitioners have filed the said guide lines vide Annexure P18A along with their amendment application. The aforesaid Circular contemplates that persons on daily wages should not be recruited for work of regular nature. Recruitment of daily wages should be made for work which is only casual or seasonal or intermittent in nature of work which is not full time in nature for which regular post cannot be sanctioned. If the aforesaid provisions applicable to the daily wages employee is taken note of, it would be seen that if an employee is working against a regular post in a regular nature of work and is a full time employee not engaged for any particular season or intermittently, he will not be a daily wages employee but would come in the category of casual employee. If the petitioner work are assessed, it would be seen that the petitioners are working continuously for the last more than 5 to 10 years, their work is of regular nature, they are not engaged intermittently nor are they part time employees. In fact, they are all working against work of a regular post but they are termed as "daily wages employee". Even in the note sheets and the pay bills prepared by the respondents as are available on record, it is seen that the petitioners are shown to be working against regular post. For example, in W.P. No.4466/2010(s), certain documents have been filed, signed and verified by the Head of Department with regard to payments to be made to the petitioners like Shri Surendra Saraf. The same is available at page 49 of the paper book and in the said document, Head of the Department has noted as under- "Nature of work of above employees is similar to regular employees." Similar notes are put up in the pay sheet and pay bill of most of the petitioners. The same is available at page 49 of the paper book and in the said document, Head of the Department has noted as under- "Nature of work of above employees is similar to regular employees." Similar notes are put up in the pay sheet and pay bill of most of the petitioners. It is, therefore, clear that even though petitioners are categorized as 'daily wages employees' but in view of the Circulars issued by the Government of India, as is indicated herein above, the nature of work done by the petitioners is that of casual employees and when the casual employees are being paid salary at minimum of the pay scale along with dearness allowance at 1/30th of the regular pay scale, on the principle of "equal pay for equal work", there is no reason for denying benefit to the petitioners. That being so, even on the principle of "equal pay for equal work", petitioners are entitled to the benefit claimed for i.e. at par with other casual employees who are paid minimum of the pay scale along with 1/30th of the D.A. and respondents are denying the same to the petitioners by creating an artificial differentiation between the petitioners and casual employees by treating the petitioners differently. In fact, petitioners are nothing but casual employees and the respondents by arbitrarily treating them as a 'daily wages employee' cannot discriminate with them. (Emphasis supplied) 8. In Vishnu Mutiya, (supra) it is held:- "10. After perusing both the judgments we find that while taking the aforesaid view in the case of Gulab Singh (supra) the Division Bench at the Main Seat has failed to notice the Rules, namely, M.P. Work Charged and Contingency Paid Employees Revision of Pay Rules, 1977, hereinafter referred to as the 1977 Rules'. These Rules are also framed under Article 309 of the Constitution like 1976 Rules' and Scheduled attached to the said Rules provides the posts of Gangmen. 11. Rule 2(c) of the M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979, herein after referred to as 1979 Rules' which are also framed under Article 309 of the Constitution, defines the word 'Permanent Employee' reads as follows : "Permanent Employees" means a contingency paid employee or a work charged employee who has completed 15 years of service or more on or after the 1st January 1974. 12. 12. It is true that gangmen is not included in the schedule of 1976 Rules but from perusal of schedule attached to 1977 Rules it is clear that the post of gangman is included in the schedule of the said Rules. In such circumstances Rules of 1977 and 1976 will have to be read together. After reading both the Rules together it becomes clear that a gangman is fully governed by the said Rules. Non-mentioning the post of 'Gangman' in the schedule to the 1976 Rules is a mere omission in amending the Rules after coming into force of 1979 Rules'. As per Rule 8 of the 1976 Rules a Gangman shall be governed by the same policy for superannuation as is applicable to the Class IV Government employees because they are in comparable category. The said Rules reads as under: "8. Age, Physical fitness of new entrants and age of superannuation.- In the matter of age, and physical fitness for recruitment and superannuation, the same rules and policies shall apply to the new entrants into the service as are applicable to the Government servants of comparable categories in the regular employment." 13. While deciding the Gulabsingh's case (supra), the 1977 Rules and Pension Rules of 1979 were brought to the notice of the Court. Under Rule 6 of 1976 Rules the employees who were in service for at least fifteen years on 1.1.1974 were eligible for the status of permanent work charged or contingency paid employees. This has been made more liberal by the 1979 Rules. Rule 2(c) of the 1979 Rules lays down that a contingency paid employee or a work-charge employee becomes permanent employee whenever he completes fifteen years of his service though it may be after 1.1.1974. 14. It is well known principle of law that when two different Rules contain different provisions the one of which is more beneficial to the employees has to be accepted in the welfare state. Considering this fact we find that the law laid down by this Court in the case of Bharosi (supra) and Bhajanlal (supra) lay down the correct law while the law laid down by the Gulab Singh (supra) is not correct as the view taken in the said case was taken without considering the 1977 Rules and 1979 Rules. Considering this fact we find that the law laid down by this Court in the case of Bharosi (supra) and Bhajanlal (supra) lay down the correct law while the law laid down by the Gulab Singh (supra) is not correct as the view taken in the said case was taken without considering the 1977 Rules and 1979 Rules. In such circumstances we hold that the services of gangmen are governed by the Rules applicable to work charged and contingency paid employees even though the gangman is not included in the schedule of 1976 Rules and the age of superannuation is 62 years as other Class IV employees of the State Government because they are in comparable category." 9. In the given facts of present case, where the respondents have not disputed that the petitioners were engaged on daily wages and as it is not shown that the petitioners were not engaged through proper procedure, it cannot be presumed that their engagement was without following due procedure. 10. In view whereof, the petitioner cannot be deprived of extended age of retirement. 11. Consequently, impugned orders of retirement are set aside. Petitioners shall be entitled for consequential benefits. 12. Petition is disposed of finally in above terms. No costs.