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2008(3) JLJ 34
Subhash Samvatsar and Smt. Indrani Datta, JJ.
State of M.P. v. Ashok Kumar Sharma and others
Writ Appeal No.414 of 2007 (Gwalior) : against the order passed by
the Single Bench in Writ Petition No.2661 of 2003;
Decided on 3.7.2008.
The respondent employees have filed a writ petition before the Single Bench alleging that they were appointed in a Cell constituted by the State Government, namely Madhya Pradesh State Municipal Services (Technical) Cell in exercise of the powers under section 86 of the Madhya Pradesh Municipalities Act, 1961. [Para 2
The contention of Shrimati Ami Prabal, the learned Deputy Advocate General appearing for the appellant State is that even though the State Government has full control over the respondents employees, still they cannot be declared as State employees in view of various circulars and the provisions of the Act and the rules framed thereunder. [Para 4
Shri S.P. Shrivastava, learned counsel for the respondents employees has referred to section 94 of the Act which provides powers to the council to appoint staff. According to him, as the respondents employees were not appointed under section 94 of the Act and were appointed under section 86 of the Act, they are not the members of service. [Para 13
Held: The question is whether the respondents are the employees of the State Government or not. Clauses (e) and (f) of rule 2 of 1968 Rules specifically exclude the State Municipal Service (Executive) who are covered by category (a) of section 86 of the Act and not of categories (b) and (c) of section 86, i.e., the State Municipal Service (Health) and State Municipal Service (Engineering). This itself makes it clear that the present respondents are covered by the definition of "Municipal service" and "Municipal employee" and so long as the said rule is not challenged by the present respondents, they are not entitled to get any benefit. [Para 14
Respondents employees belong to category (c), i.e., State Municipal Service (Engineering), hence, they are covered by the definition of "municipal service" and "municipal employee". Hence, so long as ‘said definitions are not challenged, the respondents employees cannot claim that they are the employees of the State Government, even though they are getting the same salary and benefits as are available to the State Government employees.
In the present case, the learned Single Judge has not considered the effect of the definition of "municipal employee" and "municipal service" as defined in rule 2(e) and (f) of 1968 Rules and has held the petitioners (respondents herein) as Government employees only because the State Government is in overall control over these employees and thus has committed grave error. 2000(2) JLJ 268 and AIR 1984 SC 161 distinguished. [Paras 16 & 17
(2) Constitution of India -- Art. 141 -- special leave petition dismissed without discussion of law -- cannot be a precedent as no law is laid down. [Para 12
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 86 && e-iz- uxjikfydk deZpkjh HkrhZ rFkk lsok&‘krsZa] 1968 && fu-2 ¼³½ rFkk 2¼p½ && jkT; }kjk /kkjk 86 ds v/khu xfBr e-iz- jkT; uxjikfydk lsok ¼rduhdh½ izdks"B ds deZpkjh && ;|fi jkT; ljdkj ds deZpkjh ugha] uxjikfydk ds deZpkjh gSaA
izR;FkhZ deZpkfj;ksa us ,dy U;k;ihB ds le{k ;g vfHkdFku djrs gq, fjV ;kfpdk Qkby dh gS fd e/; izns‘k uxjikfydk vf/kfu;e] 1961 dh /kkjk 86 ds v/khu ‘kfDr;k¡ iz;qDr djrs gq, jkT; ljdkj }kjk xfBr e/; izns‘k jkT; uxjikfydk lsok ¼rduhdh½ izdks"B uked izdks"B ds v/khu mudh fu;qfDr gqbZ FkhA ¿ iSjk 2
vihykFkhZ&jkT dh vksj ls milatkj fo}ku miegkf/koDrk Jh vfe izcy dk ladFku gS fd ;|fi deZpkjhx.k ij jkT; ljdkj dk iw.kZ fu;a=.k gS] rFkkfi] fofHkUu ifji=ksa] vf/kfu;e ds mica/kksa vkSj muds v/khu fojfpr fu;eksa dh n`f"V ls os jkT; ds deZpkjh ?kksf"kr ugha fd, tk ldrsA ¿ iSjk 4
izR;FkhZ&deZpkjhx.k dh vksj ls fo}ku dkmUlsy Jh ,l-ih- JhokLro us vf/kfu;e dh /kkjk 94 dk funsZ‘k fd;k gS ftlesa deZpkfjo`an fu;qDr djus dh ifj"kn~ dks ‘kfDr;k¡ micaf/kr gSaA muds vuqlkj] D;ksafd izR;FkhZ deZpkjhx.k vf/kfu;e dh /kkjk 94 ds v/khu fu;qDr ugha fd, x, gSa vfirq vf/kfu;e dh /kkjk 86 ds v/khu fu;qDr fd, x, gSa] og lsok ds lnL; ugha gSaA ¿ iSjk 13
vfHkfu/kkZfjr % iz‘u ;g gS fd izR;FkhZx.k jkT; ljdkj ds deZpkjh gSa ;k ughaA 1968 ds fu;eksa ds fu;e 2 ds [kaM ¼³½ rFkk ¼p½ esa jkT; uxjikfydk lsok ¼dk;Zikfyd½ tks vf/kfu;e dh /kkjk ds izoxZ ¼d½ }kjk vkPNkfnr gSa] /kkjk 86 ds izoxZ ¼[k½ rFkk ¼x½ ds] vFkkZr~ jkT; uxjikfydk lsok LokLF; rFkk jkT; uxjikfydk lsok ¼bathfu;fjax½ v/khu ughaA blls Lor% Li"V gksrk gS fd izLrqr izR;FkhZx.k ^^uxjikfydk lsok** vkSj ^^uxjikfydk deZpkjh** dh ifjHkk"kk ls vkPNkfnr gksrs gSa vkSj tc rd izLrqr izR;FkhZx.k }kjk mDr fu;e vk{ksfir ugha fd;k tkrk gS] og fdlh Qk;ns ds gdnkj ugha gSA ¿ iSjk 14
izR;FkhZ&deZpkjhx.k izoxZ ¼x½ vFkkZr~ jkT; uxjikfydk lsok ¼bathfu;fjax½ ds gSa] blfy,] og ^^uxjikfydk lsok** vkSj ^^uxjikfydk deZpkjh** dh ifjHkk"kk }kjk vkPNkfnr gSaA blfy,] tc rd mDr ifjHkk"kk,¡ vk{ksfir ugha dh tkrh gSa] izR;FkhZ&deZpkjhx.k ;g nkok ugha dj ldrs fd os jkT; ljdkj ds deZpkjh gSa] Hkys&gh mudks ogh osru vkSj Qk;ns izkIr dj jgs gksa tks ljdkjh deZpkfj;ksa dks miyC/k gSaA
izLrqr ekeys esa fo}ku ,dy U;k;k/kh‘k us 1968 ds fu;e 2 ¼³½ vkSj ¼p½ esa ;Fkk ifjHkkf"kr ^^uxjikfydk deZpkjh** rFkk ^^uxjikfydk lsok** ds izHkko ij fopkj ugha fd;k gS rFkk dsoy bl dkj.k fd bu deZpkfj;ksa ij jkT; ljdkj dk iw.kZ fu;a=.k gS] ;kphx.k ¼,rfLeu~ izR;FkhZx.k½ dks ljdkjh deZpkjh dh Hkk¡fr vfHkfu/kkZfjr fd;k gS vkSj xaHkhj xyrh dh gSA 2002¼2½ ts ,y ts 268 rFkk , vkb vkj 1984 ,l lh 161 izHksfnrA ¿ iSjk 16 ,oa 17
¼2½ Hkkjr dk lafo/kku && vuq-141 && fof/k dk foospu fd, fcuk fo‘ks"k btktr ;kfpdk [kkfjt dh xbZ && iwoZ fu.kZ; ugha gks ldrk D;ksafd dksbZ fof/k vf/kdfFkr ugha dh xbZA ¿ iSjk 12
Samvatsar, J. -- 1. This writ appeal is filed by the appellant State of Madhya Pradesh challenging the order dated 28th July, 2006 passed by Single Bench of this Court in Writ Petition No.2661/03 whereby the writ Court has allowed the writ petition filed by the petitioners (respondents herein) and declared them to be State employees.
2. Brief facts of the case are that the respondent employees have filed a writ petition before the Single Bench alleging that they were appointed in a Cell constituted by the State Government, namely Madhya Pradesh State Municipal Services (Technical) Cell in exercise of the powers under section 86 of the Madhya Pradesh Municipalities Act, 1961 (for short the "Act"). These employees were appointed by the Director, Urban Administration, Bhopal and Deputy Director, Urban Administration. The main object of constituting the said Cell was to look after the construction work, water supply facility and other technical jobs of the municipalities. Copy of the decision for constituting the said Cell is Annexure P-1 with the record of the writ petition dated 27th May, 1976. In the said decision, it is mentioned that at number of times, there are financial difficulties with the small municipalities and they cannot engage highly paid employees for carrying on their work. Hence, the Government has decided to constitute the Cell and to post Engineers, Sub-Engineers, Tracers, etc. in various municipalities. It was agreed to by Annexure P-2, with the record of the writ petition, that these employees shall get the same pay-scale which is payable to the employees of the State Government and Public Works Department, however, these employees shall be treated as municipal employees. Vide Annexure P-3 with the record of the writ petition, the Government has decided that the Engineers appointed under the said Cell shall be entitled to the same allowances and other benefits and GPF will be deducted from their salary, so that they can get pension. Vide Annexure P-4 dated 3.12.1976, it was further mentioned that these Engineers will get the same salary which is payable to the Government employees and they will also be entitled to the same benefits and, compulsory deductions will be made from their salary. Annexure P-5 is the circular seeking clarification about the facilities to these employees and it was clarified that these employees shall get the same facilities as are available to the Government employees. Executive Engineers, Sub-Engineers, Tracers, etc. will get the same salary which is payable to the employees of Public Works Department. Thus, it is clear that the appointing authority of these employees are the Director, Urban Administration, Bhopal and Deputy Director, Urban Administration and they are their disciplinary authorities. The Government has right to transfer these employees from one municipality to another.
3. Considering all these aspects, the writ Court has held that the total control over the respondents employees is that of the State Government, hence, the Single Bench allowed the writ petition filed by the petitioners (respondents herein) and declared these employees to be State Government employees. The reasoning assigned by the learned writ Court Bench is as under:
"With regard to functions of the petitioners, it is clear that the petitioners are working in the office of Deputy Director, Urban Administration, Gwalior Division, Gwalior. They have been appointed in the aforesaid office. The office was created in order to extend the help and supervise the construction work taken by the municipalities. The municipalities have been assigned the work .of construction also in their respective areas. Earlier the work was assigned to the Public Works Department. Hence, from the above facts, it is clear that the office of Deputy Director, Urban Administration in which the petitioners are working is performing the functions of the State Government and from the facts stated above, it is clear that the St
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