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Madhya Pradesh High Court · body

2017 DIGILAW 94 (MP)

Laxmibai Sen v. Water Resource Department

2017-01-18

PRAKASH SHRIVASTAVA

body2017
JUDGMENT : Mr. Prakash Shrivastava, J. Heard finally. 1. This writ petition has been filed by the petitioner seeking a direction to fix the salary of the petitioner’s husband from the date of his classification as permanent employee i.e.17.01.2002/18.06.2002 and also the pay scale with arrears. 2. In brief, the case of the petitioner is that her husband Ashok Sen was appointed on the post of untrained helper as daily rated employee on 01.12.1988 and was classified as permanent employee vide order dated 17.01.2002. A reference was filed by the petitioner’s husband and the award dated 07.10.2005 was passed by the Labour Court, directing the respondent to treat the concerned employee as permanent employee, as per order dated 18.06.2002 and extend the benefit of the pay scale as per the regular employee. Against the said award, Writ Petition No.1088/2006 preferred by the State was dismissed vide order dated 09.02.2010 and the SLP was also dismissed. The petitioner’s husband had died on 24.07.2015, therefore, the petitioner has approached this Court. 3. The respondents have filed reply and have not disputed the aforesaid factual position, but have taken a stand that the respondents are making endeavour to give arrears of salary to the petitioner in respect of the claim of the petitioner’s husband. 4. Having heard the learned counsel for the parties and on perusal of the record it is noticed that undisputedly the petitioner’s husband was classified as permanent employee vide order dated 17.01.2002 and the said right was further fortified by award dated 07.10.2005. After classification as permanent employee, the husband of the petitioner was entitled to the minimum of the pay scale of the post in question. The said aspect of the matter has already been decided by the Hon’ble Supreme Court in the matter of Ram Naresh Rawat v. Ashwini Ray 2016 SCC Online SC 1475 wherein the Supreme Court has held as under:- “25. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of ‘permanent employee’ can be treated as ‘regular’ employee. This answer does not flow from the reading of the Standing Orders Act and Rules. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of ‘permanent employee’ can be treated as ‘regular’ employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as ‘permanent employee’ would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months’ service an employee gets right to be treated as ‘permanent employee’. Moreover, this Court has, as would be noticed now, drawn a distinction between ‘permanent employee’ and ‘regular employee’. 26. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of Madhya Pradesh and Others v. Dilip Singh Patel and Others. That was a case where similarly situated employees, who were classified as ‘permanent employees’ under the Standing Orders and Act, were given minimum of the pay-scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of Sixth Pay Commission which were accepted qua regular employees. This Court, though, upheld the orders of the High Court giving them the benefit of revision of pay-scale pertained to Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services which regularisation was to take place as per the seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder: “We have heard learned counsel for the parties and perused the records. It appears that the respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such as O.A. No. 648 of 1995, O.A. No. 293 of 1991 etc. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder: “We have heard learned counsel for the parties and perused the records. It appears that the respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such as O.A. No. 648 of 1995, O.A. No. 293 of 1991 etc. In compliance of the orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) by orders issued in between April, 2004 and June, 2004 provided the minimum wages and allowances to the respondents without increment as per the Schedule of the pay scale from the date of the order of the Tribunal. It was further ordered that the regularization of the daily wages employees shall be made as per the seniority list with due procedure and the benefit of increment and other benefits can only be granted after the regularisation as per the Rules. It was ordered that the order of the Court for benefit of minimum wages and allowances shall be.” From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay-scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits.” 27. From the aforesaid, it follows that though a ‘permanent employee’ has right to receive pay in the graded pay-scale, at the same time, he would be getting only minimum of the said pay-scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay-scale. 28. In view of the aforesaid, we do not find any substance in the contentions raised by the petitioners in these contempt petitions. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. We are conscious of the fact that in some cases, on earlier occasions, the State Government while fixing the pay scale, granted increments as well. However, if some persons are given the benefit wrongly, that cannot form the basis of claiming the same relief. It is trite that right to equality under Article 14 is not in negative terms (See Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [9]).” 5. Keeping in view the aforesaid judgment, the respondents are required to pay the minimum of the pay scale to the husband of the petitioner from the date of his classification as permanent employee. 6. Hence, the present writ petition is disposed of by directing the respondents no.1 and 2 to calculate the difference of the salary which was payable to the petitioner’s husband at the minimum of the pay scale of the post in question and the wages/salary actually paid for working on the said post, after classification as permanent employee and pay the same to the petitioner, if not already paid, within a period of three months from today. 7. In respect of any other surviving claim the petitioner will be at liberty to file an appropriate representation before the Competent Authority clearly stating the claim if any, and the same shall also be considered and decided by the Competent Authority in accordance with law within a period of three months from date of its receipt.