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2023 DIGILAW 428 (MP)

Ganga Charan Damde v. State of M. P.

2023-03-29

SANJAY DWIVEDI

body2023
ORDER 1. Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally. 2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is claiming following relief(s):- “(1) Quashed the impugned order dt. 15.7.2019 (Annexure P/1) so far it relates to the petitioner and the impugned order dt,. 18.7.2012 (Annexure P/2) in the interest of justice, with direction to the respondents to pay the regular pay scale to the petitioner after completing 3 years of service i.e. since 30.6.1996 with 12% interest. (2) That this Hon’ble Court further pleased to grant the petitioner all the consequential benefits such as arrears of salary, benefit of kramonnati, time pay scale, benefit of 120 earned leave, increments etc. in the interest of justice. (3) That, Hon’ble High Court may kindly further be pleased to grant any other relief to the petitioner looking to the facts and circumstances of the case in the interest of justice.” 3. In order to appreciate the grievance of the petitioner, relevant facts, which lie in a narrow compass need mention infra:- (3.1) That the petitioner was initially appointed vide order dated 30.6.1993(Annexure-P/3) on the vacant post of Chowkidar in the contingency paid establishment on a fixed pay-scale as has been determined by the Collector on monthly basis. (3.2) Subsequently, the State Government vide circulars dated 15.12.1992 and 7.10.1994 (jointly filed as Annexure-P/4) issued instructions for implementing the revised pay-scale to the employees who were appointed on a fixed pay as determined by the Collector on monthly basis and completed three years period of service continuously. (3.3) As per the petitioner, before the-then State Administrative Tribunal (SAT) Bench at Indore, one of the similarly situated employees appointed as a Peon on contingency basis, filed an application registered as O.A. No.128/1999 [Smt. Savitri Bai v. The State of Madhya Pradesh and others], which vide order dated 10.08.1999 (Annexure-P/5) got allowed directing the respondents to consider the case of petitioner therein for grant of regular pay-scale after completing the period of three years by her. Following the order passed in the case of Smt. Savitri Bai (supra), one of the similarly situated persons filed a petition i.e. W.P. No.4389/2003 [Ghanshyam Tiwari and others v. State of MP] before Indore Bench of this Court which got disposed of vide order dated 29.10.2003 directing the respondents therein to consider the case of the employees for grant of regular pay-scale. Against the order passed in the aforesaid petition, an SLP was preferred before the Supreme Court, which got dismissed vide order dated 24.2.2006 (Annexure-P/7). (3.4) Thereafter, Indore Bench of this Court in W.P. No.7018/2003 [Sushil Kumar and others v. State of MP and others] vide order dated 23.8.2004 (Anexure-P/8) while considering the case of other similarly situated employees, who were appointed in the contingency establishment and after completion of three years of their services were claiming regular pay-scale, has observed that salary of the petitioners therein be re-fixed granting them a pay-scale which was prevalent for the post of Peon on the work charged and contingency establishment. (3.5) The present petitioner had been making several representations time and again, but when nothing was done, then he along with other nine persons preferred a petition before this Court i.e. W.P. No.7507/2011(S) which got disposed of vide order dated 9.5.2011 (Annexure-P/9) directing the respondents to consider the claim of the petitioners in light of the order passed by Indore Bench of this Court in W.P. Nos.4389/2003 and 7018/2003. Though, the said order of the High Court got reviewed vide order dated 20.5.2011 in R.P. No.247/2011, but when no compliance whereof was made then a contempt petition i.e. Conc No.751/2012 was filed before this Court which got disposed of in pursuance to the compliance report submitted by the respondents. (3.6) Subsequently, one of the similarly situated employees namely Rajendra Kumar Kajle filed a petition before this Court registered as W.P. No.20502/2012(S) which was disposed of vide order dated 14.12.2012 (Annexure-P/13) directing the respondents to grant the petitioner therein the same benefit as has been granted in W.P. Nos.4389/2003 and 7018/2003. (3.6) Subsequently, one of the similarly situated employees namely Rajendra Kumar Kajle filed a petition before this Court registered as W.P. No.20502/2012(S) which was disposed of vide order dated 14.12.2012 (Annexure-P/13) directing the respondents to grant the petitioner therein the same benefit as has been granted in W.P. Nos.4389/2003 and 7018/2003. Thereafter, the respondents have assailed the order passed in W.P. No.20502/2012(S) by filing a writ appeal i.e. W.A. No.78/2015, but the same got dismissed clarifying the position that the case reported in (2006) 4 SCC 1 [Secretary, State of Karnataka and Others v. Uma Devi and Others], is not applicable in the case at hand as the claim of regularization as has been laid down by the Supreme Court in the above case relates to daily wager employees, whereas the respondent (petitioner in the petition) namely Rajendra Kumar Kajle was appointed as a contingency paid employee in the work charged establishment. However, the order passed by the Division Bench in the aforesaid appeal was assailed before the Supreme Court by filing an SLP, but that SLP was also dismissed vide order dated 20.1.2017 (Annexure-P/17). (3.7) After dismissal of SLP, in compliance of order passed by the writ Court, the case of Rajendra Kumar Kajle was considered granting him regular pay-scale after completion of three years of service vide order dated 18.10.2017 (Annexure-P/18). However, in light of the order passed by the writ Court in the case of Rajendra Kumar Kajle, one other employee namely Bhaskar Rao Hadge was also granted the benefit of regular pay-scale after completion of three years of service by him. (3.8) In the present petition, the petitioner is claiming that although in pursuance to the policy introduced by the State Government on 7.10.2016 classifying him as a permanent employee, he has been granted a pay-scale, but according to him, the said policy is not applicable upon him as he is working in work charged contingency establishment whereas the said policy is applicable upon the employees appointed on daily wages. 4. Relying upon the decision of Uma Devi (supra), the respondents have filed a reply/preliminary objection stating therein that the regularization as claimed by the petitioner cannot be made. According to the respondents, while granting benefit of policy dated 7.10.2016 to the petitioner, the respondents did nothing wrong and as such, the petition deserves dismissal. 5. 4. Relying upon the decision of Uma Devi (supra), the respondents have filed a reply/preliminary objection stating therein that the regularization as claimed by the petitioner cannot be made. According to the respondents, while granting benefit of policy dated 7.10.2016 to the petitioner, the respondents did nothing wrong and as such, the petition deserves dismissal. 5. Learned counsel for the petitioner submits that raising his grievance, the petitioner has made several representations before the authorities specifying therein that his case cannot be treated like a daily wager employee and on the contrary, his case is similar to that of Rajendra Kumar Kajle and Bhaskar Rao Hadge, but no decision on his representations has been taken so far. He submits that the appointment of the petitioner was made on the vacant post of Chowkidar as a contingency paid employee on a fixed pay as determined by the Collector on monthly basis and after completion of three years of service, he is entitled to get regular pay-scale as has been granted to Rajendra Kumar Kajle and Bhaskar Rao Hadge. 6. On the other hand, learned Deputy Government Advocate has opposed the submissions advanced by learned counsel for the petitioner and submitted that the regularization as claimed by the petitioner cannot be granted to him. According to him, the petition is liable to be dismissed. 7. I have heard the arguments advanced by either side and perused the record. 8. Though, reply to the petition has been filed, but without considering the fact that the Division Bench of this Court and also the Supreme Court have considered this aspect that the case of Uma Devi (supra) relates to daily wages employees but not applicable upon the employees working in work charged and contingency establishment or appointed on contingency basis. As such, the stand taken by the respondents in their reply is not related with the actual dispute involved in the case. 9. As such, the stand taken by the respondents in their reply is not related with the actual dispute involved in the case. 9. Taking into account the submissions advanced on behalf of the parties and also the documents available on record, I have no hesitation to say that the case of present petitioner is similar to that of Rajendra Kumar Kajle and Bhaskar Rao Hadge because initially they were appointed like the petitioner on contingency basis on a fixed pay as determined by the Collector and, therefore, the petitioner’s appointment cannot be treated at par with daily wager and as such, the policy dated 7.10.2016 is not applicable upon him and in fact, the order dated 15.7.1990 passed in the petitioner’s favour classifying him to be a permanent employee and granting him a pay-scale of Rs.4000-7000 that too w.e.f. 1.9.2016 is improper. 10. Since the Division Bench in W.A. No.78/2015 vide order dated 22.7.2015 had already clarified the legal issue as involved in this case which has been further affirmed by the Supreme Court and in pursuance whereof, the State Government has passed the orders on 18.10.2017 (Annexure-P/18) and 3.11.2017 (Annexure-P/19) in favour of Rajendra Kumar Kajle and Bhaskar Rao Hadge respectively granting them regular pay-scale, therefore, the petitioner is also entitled to get the same benefit as has been granted to aforesaid employees. Accordingly, this petition is allowed, setting aside the orders dated 15.7.2019 (AnnexureP/1) and 18.7.2012 (Annexure-P/2) respectively passed by the respondents in respect of the petitioner. The respondents are directed to pass an appropriate order in favour of the petitioner treating him similar to that of Rajendra Kumar Kajle and Bhaskar Rao Hadge. The aforesaid exercise shall be completed by the respondents within a period of three months from the date of receipt of copy of this order. It is also made clear that arrears of the salary be also paid to the petitioner within a further period of three months, failing which, the same shall carry interest @8% till the actual payment is made. 11. With the aforesaid, the petition stands allowed.