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2018 Supreme(MP) 835
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
SHEEL NAGU, S.A. DHARMADHIKARI, JJ.
STATE OF M.P. - Appellant
Vs.
RAJENDRA KUMAR JAIN - Respondent
R.P. No. 264 of 2017, R.P. No. 320 of 2017, R.P. No. 321 of 2017, R.P. No. 322 of 2017, R.P. No. 323 of 2017, R.P. No. 324 of 2017, R.P. No. 325 of 2017, R.P. No. 326 of 2017, R.P. No. 327 of 2017, R.P. No. 328 of 2017, R.P. No. 329 of 2017, R.P. No. 331 of 2017, R.P. No. 332 of 2017, R.P. No. 333 of 2017, R.P. No. 334 of 2017, R.P. No. 335 of 2017, R.P. No. 336 of 2017, R.P. No. 340 of 2017, R.P. No. 341 of 2017, R.P. No. 342 of 2017, R.P. No. 344 of 2017, R.P. No. 354 of 2017, R.P. No. 355 of 2017, R.P. No. 356 of 2017, R.P. No. 358 of 2017, R.P. No. 359 of 2017, R.P. No. 365 of 2017, R.P. No. 366 of 2017, R.P. No. 367 of 2017, R.P. No. 369 of 2017, R.P. No. 370 of 2017, R.P. No. 371 of 2017, R.P. No. 372 of 2017, R.P. No. 373 of 2017, R.P. No. 374 of 2017, R.P. No. 375 of 2017, R.P. No. 376 of 2017, R.P. No. 377 of 2017, R.P. No. 378 of 2017, R.P. No. 379 of 2017, R.P. No. 472 of 2017, R.P. No. 473 of 2017, R.P. No. 522 of 2017, R.P. No. 523 of 2017, R.P. No. 524 of 2017, R.P. No. 525 of 2017, R.P. No. 561 of 2017, R.P. No. 594 of 2017, R.P. No. 609 of 2017, R.P. No. 611 of 2017
Decided On : 24-05-2018
For the Petitioners:Shri Vishal Mishra, Additional Advocate General and Shri N.S. Kirar, Govt. Advocate.
For the Respondents: Shri B.P. Singh, Shri Jitendra Sharma, N.S. Rana, Mahesh Goyal, Devesh Sharma, Anup Pratap Singh Chauhan, Learned Counsel.
The distinction between permanency by classification and substantive appointment, and the application of the principle of 'Equal Pay for Equal Work' in favor of classified permanent employees.
Headnote:
daily-wager - entitlement to regular pay-scale with increments - M.P. Industrial Employment (Standing Orders) Act, 1961, M.P. Industrial Employment (Standing Orders) Rules, 1963, Minimum Wages Act, 1948 - The court discussed the entitlement of a daily-wager declared permanent by classification to claim salary along with increments in the regular pay-scale admissible to a civil post. The judgment highlighted the distinction between permanency by classification and substantive appointment, emphasizing that an employee declared permanent by classification under the Industrial Laws cannot be equated with an employee appointed substantively by following statutory/constitutional provisions. The court held that the employee declared permanent by way of classification under the Industrial Law cannot be equated, at least on the pecuniary front, with the employee who has been appointed substantively after following due process of law prescribed under the statutory rules/constitutional provisions. The judgment also discussed the principle of 'Equal Pay for Equal Work' and its application in favor of classified permanent employees by granting them the minimum of the regular pay scale admissible to a substantively appointed employee, thereby ameliorating the disparity to a considerable extent.
Fact of the Case:
The review petitions involved the question of entitlement of a daily-wager declared permanent by classification to claim salary along with increments in the regular pay-scale admissible to a civil post. The employees were engaged on daily wages without following any recognized recruitment process and were classified as permanent by the employer after completing 240 days of daily wage service. The court analyzed the factual matrix and the legal framework to determine the entitlement of the employees to pecuniary benefits.
Finding of the Court:
The court found that the employee declared permanent by way of classification under the Industrial Law cannot be equated, at least on the pecuniary front, with the employee who has been appointed substantively after following due process of law prescribed under the statutory rules/constitutional provisions. The judgment highlighted the distinction between permanency by classification and substantive appointment, emphasizing that the employee declared permanent by classification does not enjoy the same status and privilege as an employee appointed substantively on a civil post.
Issues: The main issue involved the entitlement of a daily-wager declared permanent by classification to claim salary along with increments in the regular pay-scale admissible to a civil post. The court also addressed the distinction between permanency by classification and substantive appointment, and the application of the principle of 'Equal Pay for Equal Work' in favor of classified permanent employees.
Ratio Decidendi: The court held that the employee declared permanent by way of classification under the Industrial Law cannot be equated, at least on the pecuniary front, with the employee who has been appointed substantively after following due process of law prescribed under the statutory rules/constitutional provisions. The judgment emphasized the distinction between permanency by classification and substantive appointment, and the application of the principle of 'Equal Pay for Equal Work' in favor of classified permanent employees.
Final Decision: The review petitions were allowed, and the orders under review were set aside.
Sheel Nagu, J.
Question Involved:
"The question which begs for an answer in these review petitions is whether a daily-wager who is declared permanent by way of classification, by the employer, merely on completion of 240 days of service as daily-wager, without any judicial intervention is entitled to claim salary alongwith increments in the regular pay-scale admissible to a civil post or is merely entitled to salary equivalent to the minimum of the regular pay-scale without increments and in this backdrop whether the impugned orders granting benefit of regular pay-scale with increments are liable to be reviewed or not?. "
CONTENT & CONTEXT
This bunch of review petitions can be classified into two categories:-
(i) The first category is of following review petitions arising from orders passed in writ petitions:-
R.P. Nos. 264/17, 320/17, 321/17, 322/17, 329/17, 340/17, 341/17, 342/17, 344/17, 365/17, 366/17, 367/17, 369/17, 370/17, 371/17, 372/17, 373/17, 374/17, 375/17, 376/17, 377/17, 378/17, 379/17, 472/17, 473/17, 522/17, 523/17, 524/17, 525/17, 561/17, 594/17, 609/17 and 611/17.
(ii) The second category is of following review petitions arising from orders passed in writ appeals:-
R.P. Nos. 323/17, 324/17, 325/17, 326/17, 327/17, 328/17, 331/17, 332/17, 333/17, 334/17, 335/17, 336/17 354/17, 355/17, 356/17, 358/17, 359/17.
2. However, since the question involved in all these cases is the same, this court thought it fit to analogously hear and decide both the above two categories of review petitions by this common order.
3. The respective I. As for condonation of delay in filing these bunch of review petitions are taken up, considered and allowed for the reasons mentioned therein and to rectify the aberration in judicial view occasioned by orders under review and for restoring judicial discipline.
4. For guidance the factual matrix involved in R.P. No. 356/2017 is considered.
4.1 R. P. No. 356/2017 seeks review of the final order dated 29/8/12 passed in W.A. No. 522/2012 which in turn approves the judgment dated 14/06/12 in W.P. No. 4836/2011(S) which was disposed of by following an earlier decision rendered by a single bench of this court in W.P. No. 6515/2011 (S) passed on 14/12/11 (Suresh Sharma Vs. State of M.P.).
4.2 The skeletal facts in R.P. No. 356/17 are that the respondent/employee was initially engaged as daily-wager on 1/1/90. Respondent was classified without judicial intervention as permanent employee by order issued by Executive Engineer, P. H. E. Mechanical Section Gwalior as a Helper w.e.f. 27/8/90 (on mere completion of 240 days of service) but without any beneficial change in wages/salary. Aggrieved by non-regularisation and non-grant of pay scale admissible to regular employees working on commensurate post, the respondent preferred W.P. No. 4836/11(S). While allowing W.P. No.4836/2011(S), the single bench of this Court squarely relied upon another single bench decision dated 14/12/11 in Suresh Sharma Vs. State of M.P. & Ors., which in turn drew inspiration from (Engineer-in-Chief, P. H. E. D. Vs. Budha Rao Magarde, (2002) 1 MPLJ 385) (Single Bench) and Division Bench decision dated 1/11/11 whereby a bunch of W.As. were decided including W.A. No.1266/10 State of M.P. Vs. Rupram Yadav (wrongly captioned as State of M.P. Vs. Madan Singh Kushwaha). Pertinently the case of State of M.P. Vs. Madan Singh Kushwaha bore the registration number W.A. 228/2011 which incidentally was a part of the bunch of W. As decided by Division Bench on 1/11/11.
4.3 All these review petitions arise out of the foundational factual matrix that respondents herein were engaged on daily wages without following any recruitment process recognised by law and in the absence of any sanctioned post, but for having worked since long, respondents were classified as permanent by the employer w.e.f. completion of 240 days of daily wage service, by issuing orders of classification in their favour but without any financial advantage since they co
