My photo




Thursday, December 22, 2016

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]).


                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                  CONTEMPT PETITION (CIVIL) NO. 771 OF 2015
                SPECIAL LEAVE PETITION (C) NO. 25284 OF 2012

|RAM NARESH RAWAT                           |.....PETITIONER(S)           |
|VERSUS                                     |                             |
|SRI ASHWINI RAY & ORS.                     |.....RESPONDENT(S)           |

                                   W I T H
                  CONTEMPT PETITION (CIVIL) NO. 838 OF 2015
                 SPECIAL LEAVE PETITION (C) NO. 9635 OF 2013

                  CONTEMPT PETITION (CIVIL) NO. 858 OF 2015
                SPECIAL LEAVE PETITION (C) NO. 23985 OF 2012

                  CONTEMPT PETITION (CIVIL) NO. 62 OF 2016
                SPECIAL LEAVE PETITION (C) NO. 31343 OF 2011

                CONTEMPT PETITION (CIVIL) NOS. 82-85 OF 2016
 SPECIAL LEAVE PETITION (C) NOS. 18245 OF 2014, 18246, 18247 & 18249 OF 2014

            CONMT.PET.(C) NO. 101/2016 IN  SLP(C) NO. 19220/2014

            CONMT.PET.(C) NO. 787/2015 IN  SLP(C) NO. 19224/2014

            CONMT.PET.(C) NO. 788/2015 IN  SLP(C) NO. 19286/2014

            CONMT.PET.(C) NO. 819/2015 IN  SLP(C) NO. 19217/2014

            CONMT.PET.(C) NO. 823/2015 IN  SLP(C) NO. 19218/2014

            CONMT.PET.(C) NO. 856/2015 IN  SLP(C) NO. 19230/2014

     CONMT.PET.(C) NO. 121-131/2016 IN SLP(C) NO. 8473/2012, 19394/2012,
   23980/2012,23981/2012, 23986/2012, 34868/2012, 38228/2012, 38231/2012,
                     38235/2012, 38236/2012, 19236/2014.

            CONMT.PET.(C) NO. 735/2015 IN  SLP(C) NO. 19278/2014

   CONMT.PET.(C) NO. 793-817/2015 IN SLP(C) NO.20025/2011 AND   19396/12,
 SLP(C) NO. 30275/2012, SLP(C) NO. 30276/2012, SLP(C) NO. 1577/2013, SLP(C)
   NO. 5597/2013, SLP(C) NO. 29683/2013, SLP(C) NO. 19095/2014, SLP(C) NO.
    19282/2014, SLP(C) NO. 19251/2014, SLP(C) NO. 25279/2012, SLP(C) NO.
     12438/2013, SLP(C) NO. 12433/2013, SLP(C) NO. 5350/2013, SLP(C) NO.
    19221/2014, SLP(C) NO. 19260/2014, SLP(C) NO. 19257/2014, SLP(C) NO.
     19206/2014, SLP(C) NO.25277/2012, SLP(C) NO. 19094/2014, SLP(C) NO.
    19205/2014, SLP(C) NO. 19219/2014, SLP(C) NO. 19237/2014, SLP(C) NO.
                    19246/2014 AND SLP(C) NO. 19255/2014

            CONMT.PET.(C) NO. 215/2016 IN  SLP(C) NO. 21830/2012
            CONMT.PET.(C) NO. 216/2016 IN  SLP(C) NO. 21835/2012

            CONMT.PET.(C) NO. 512/2016 IN  SLP(C) NO. 18413/2014

             CONMT.PET.(C) NO. 475/2016 IN  SLP(C) NO. 8203/2012

            CONMT.PET.(C) NO. 536/2016 IN  SLP(C) NO. 19393/2012

                                    A N D

            CONMT. PET. (C) NO. 106/2016 IN SLP(C) NO. 19292/2012

                               J U D G M E N T


                  All  the  petitioners  who  have  filed   these   contempt
petitions were engaged by the State of Madhya  Pradesh  on  different  dates
on different posts but all of them  were  engaged  as  daily  wagers.   They
continued as daily  wagers  for  long  spell  of  time.   According  to  the
petitioners, in terms of Madhya  Pradesh  Industrial  Environment  (Standing
Order) Rules, 1963, they became entitled  to  be  classified  as  'permanent
employees'.   However,  their  demand  for   classification   as   permanent
employees was not acceded to by the  State,  which  inaction  of  the  State
Government provoked some of these employees to raise the industrial  dispute
for their classification which resulted into award(s) of  the  labour  court
directing their classification as 'permanent'.  The labour court  also  held
that on their classification as permanent, they would  be  entitled  to  the
pay-scale of permanent post from dates  specified  in  the  award.   Appeals
were filed by the State against those orders which  were  dismissed  by  the
industrial court and writ petitions also came to be dismissed  by  the  High
Court.  This resulted in passing of the orders by the concerned  authorities
in  the  State  Government  classifying  these  petitioners   as   permanent
employees.  It was also ordered that they shall be entitled to  minimum  pay
as fixed by the Labour Commission.  This led to another round of  litigation
as the petitioners claimed that on their classification  as  'permanent'  to
their respective posts they were entitled to receive the pay-scale  attached
to the said posts.  These reliefs were granted to them by the  labour  court
against which appeal preferred before the  industrial  court  and  the  writ
petition before the High Court were also  dismissed.  In  all  these  cases,
thereafter, special leave petitions were filed which were dismissed by  this
Court by common order dated 21st January, 2015.  This order reads as under:
“Delay condoned.


We direct the State Government to implement the order(s) passed by the  High
Court within eight months' time from today.

If for any reason, the petitioner-State  does  not  implement  the  order(s)
passed by the High Court, the respondents are at liberty  to  approach  this
Court by way of filing contempt petition(s).”

The State  Government  has  passed  the  orders  fixing  the  pay  of  these
petitioners at  the  minimum  of  the  regular  pay-scale  attached  to  the
respective posts.  To demonstrate, by way of example, in  the  case  of  Ram
Naresh Rawat, who was engaged as a daily wager, the  pay  is  fixed  at  Rs.
15330/- in the pay-scale of Rs. 5200/- attached to the said post.  Break  up
of the aforesaid salary fixing is as under:

|Sl.   |Particulars             |Amount (Rs.)  |
|No.   |                        |              |
|2(i)  |Minimum in the Regular  |5200/-        |
|      |pay scale granted vide  |              |
|      |order dated 11.03.2016  |              |
|      |(per month)             |              |
|2(ii) |Grade pay (per month)   |1800/-        |
|2(iii)|D.A. (per month)        |8330/-        |
|2(iv) |Total salary and other  |15330/-       |
|      |benefits in hand        |              |
|      |(i+ii+iii) per month    |              |

            At the time of passing the order, he was  getting  monthly  wage
of Rs. 11,300/- as the daily wager.  His salary, therefore, stands  enhanced
of Rs. 4030/-.  In  addition,  he  is  given  arrears  in  the  sum  of  Rs.
5,93,887/-.  In similar manner, pay of all the petitioners has  been  fixed.

The petitioners are, however, not satisfied with the aforesaid fixation  and
contended that the pay fixation has not been done as per the orders of  this
Court.  The precise submission is that once they are  conferred  the  status
of permanent employee by the court and it is also  categorically  held  that
they are entitled to regular pay attached to the said  post,  not  only  the
pay should be fixed in the regular pay-scale, the petitioners would also  be
entitled to the increments and other emoluments attached to the  said  post.
In other words, they pleaded that fixation of pay at the minimum of the pay-
scale is uncalled for and does not amount to complying with  the  directions
of the Court in full measure.  It is  also  submitted  that  in  some  other
cases where the High Court has given similar directions, which are  followed
in their cases, the State Government has not only fixed pay in  the  regular
pay-scale but has also been granting increments etc. as well.

The case set up  by  the  respondents,  on  the  other  hand,  is  that  the
petitioners are daily wage employees.  They have not been  'regularised'  in
their respective posts for want of adequate  number  of  regular  vacancies.
They are granted 'permanency' in terms of  standing  orders  which,  at  the
most, entitles them to get the pay which is given to employees appointed  on
regular basis but such an entitlement is to the minimum  of  the  said  pay-
scale.  It is also argued that even the direction of the High Court  was  to
grant  pay  in  the  regular  pay-scale  with  effect  from  the   date   of
classification orders and there is no direction given by the High  Court  to
give them increments etc.   which  is  admissible  only  when  a  person  is
appointed on regular basis or whose services are regularised, which has  not
happened in the case of the petitioners.

Learned counsel who appeared for these petitioners have drawn our  attention
to the relevant provisions of the standing orders  on  the  basis  of  which
they were classified as permanent.  It is standing order No. 2  which  deals
with classification of the employees and reads as under:
“2.   Classification of Employees.— Employees shall  be  classified  as  (i)
permanent, (ii) permanent seasonal, (iii) probationers,  (iv)  Badlies,  (v)
apprentices, and (vi) temporary:

(i)    A  'permanent'  employee  is  one  who  has  completed  six   months'
satisfactory service in a clear vacancy in one or more posts  whether  as  a
probationer or otherwise, or a person whose name has  been  entered  in  the
muster roll and who is given a ticket of permanent employee;

(ii)  A 'permanent seasonal employee' is one who has completed  service  for
a period equal to 2/3rd  of  the  duration  or  a  season  or  three  months
whichever is less in a clear vacancy and shall be deemed to be  a  permanent
employee for the purpose of these order;

(iii) A 'probationer' means an employee who  is  provisionally  employed  to
fill a clear vacancy, and who has not  completed  six  months'  satisfactory
service in the aggregate;

(iv)  A 'badli', employee means an employee who is employed on the  post  of
a permanent seasonal employee, or a  probationer  or  a  permanent  seasonal
employee who is temporarily absent.

(v)   An 'apprentice' means a learner, provided that no  employee  shall  be
classified as an apprentice if he ha shad training for an  aggregate  period
of one year, provided further that a longer period of  apprenticeship  shall
be required if prescribed by a law or an award, or  by  agreement  with  the
representative of employees;

(vi)  'temporary employee' means an employee who has been employed for  work
which is essentially  of  a  temporary  character,  or  who  is  temporarily
employed  as  an  additional  employee  in  connection  with  the  temporary
increase in the work of a permanent  nature,  provided  that  in  case  such
employee is required to work.  Continuously for  more  than  six  months  he
shall be deemed to be a permanent employee, within  the  meaning  of  clause
(i) above.”

Once the labour court classified them  as  permanent,  which  classification
had attained finality, it necessarily follows that they are entitled to  all
benefits which are to be given to regularly appointed employees.

It is further submitted that the  High  Court  specifically  went  into  the
question as to whether, on  attaining  permanency,  these  petitioners  were
entitled to the pay-scale attached  to  the  post  which  is  given  to  the
regularly  recruited  employee  and  answered  the  said  question  in   the
affirmative.  Our attention was drawn to one such order dated 8th May,  2008
passed by the High Court in Writ Petition No. 1306 of 2008 where this  issue
is  specifically  dealt  with  in  detail  and  decided  in  favour  of  the
petitioners, after  taking  note  of  various  judgments.   It  was  further
pointed out that in some  other  cases,  increments  are  also  given  while
fixing pay in the regular pay-scale.  Example of one such case given by  the
petitioner is State of Madhya Pradesh & Ors. Vs. Bhasker  Sharma[1]  wherein
the Writ Appeal was  also  dismissed.   It  was  submitted  that  after  the
dismissal of the appeal, Bhasker Sharma was not only  granted  regular  pay-
scale but is getting increments and other  benefits  attached  to  the  said
post as well.  It was also argued that many such employees have  been  given
similar benefits and the State Government has now taken a 'U'  turn  and  is
not willing to extend such benefits to the petitioners  herein.   Copies  of
many such orders passed by the High Court are filed by  the  petitioners  as
additional documents in support of their submissions.

Mr. Mukul Rohatgi, learned Attorney General, who appeared on behalf  of  the
State Government and the Contemnors emphasised that the  only  direction  of
the High Court,  which  has  been  upheld  by  this  Court,  is  that  these
petitioners are entitled to pay in a regular scale.  It is argued that  they
have been classified  as  “permanent”  because  of  the  aforesaid  standing
orders which means that their services would not  be  terminated.   However,
that does not mean that the petitioners are regularised against  any  posts.
It  was  also  argued  that  each  of  these  petitioners  have  been  given
substantial amount as arrears of pay in terms of the orders  passed  by  the
High Court and there is significant enhancement in  the  monthly  emoluments
now drawn by these  petitioners.    The  learned  Attorney  General  further
submitted that there are 520 such employees who have gained entry  into  the
service through backdoor  as  they  were  not  appointed  on  regular  basis
against regular vacancy after following required selection procedure.   Such
employees, like the petitioners, cannot  seek  regularisation  and  benefits
emanating from such regularisation in view of  the  law  laid  down  by  the
Constitution Bench of this Court in State  of  Karnataka  Vs.  Uma  Devi[2].
It was also argued that instant proceedings are in the contempt cases  where
scope of  jurisdiction  was  limited.   The  State  had  complied  with  the
directions in a bona fide manner on its understanding about  the  orders  of
the High Court against which SLPs  have  been  dismissed  and  in  case  the
grievance of the petitioners is that they are  entitled  to  something  more
than what is granted by the State Government, they can challenge  the  order
passed  by  the  Government  fixing  their  pay,  by  taking   recourse   to
substantive proceedings but not in the form of contempt petition.

      Mr. Rohatgi also brought to the notice  of  this  Court  a  subsequent
event which has been brought on record by filing additional  affidavit.   It
was pointed out  that  on  7th  October,  2016,  the  State  Government  has
promulgated  a  one-time  scheme  for  regularisation  of  all  daily   wage
employees in the State.   Copy  of  the  said  scheme  is  annexed,  salient
features whereof are as under:
“(I)  The Daily wage employees will now be classified as “Sthayee Karmi”.

(II)  They are  classified  in  three  categories,  i.e.,  Unskilled,  Semi-
skilled, and Skilled.  Their pay scale is also determined accordingly.   Pay
Scale of a skilled employee is Rs. 5000-100-8000.

(III) They will be given the benefit of seniority and their  actual  pay  on
September 1, 2016 in their pay scale will be determined based on  the  years
of service put in by them.

(IV)  They will be entitled to Dearness Allows. (Presently at 125%)

(V)   The pay fixation in the pay scale will be  applicable  from  1.9.2016.
Next increment in salary will be given in September 2017.

(VI)  On attaining the age of  superannuation,  they  will  be  entitled  to
Gratuity based on 15 days salary per year  during  the  period  of  service.
Maximum limit of this amount will  be  Rs.  1,25,000/-  for  unskilled,  Rs.
1,50,000/- for semi-skilled, and Rs. 1,75,000/- for skilled workers.

(VII) Such daily wager employees who were working  on  16.5.2007,  and  have
also been in service as on 1.9.2016  will  be  entitled  to  the  pay  scale
mentioned above and other benefits.

6.    In  view  of  the  aforesaid  scheme,  the  MP  Daily  Wages  Employee
(Conditions of Service), Rules, 2013 now stands repealed.

7.    The scheme also prescribes the steps to be taken for  filling  up  the
vacant Regular posts.  For this purpose the vacant Class IV posts  available
in the regular setup under various departments at the district  level  would
be filled up on priority from the  existing  sthayee  karmis.   The  workers
working with various Construction  Departments  (Nirman  Vibhag)    will  be
treated as Industrial Workers for the purposes of Standing Order  Act,  1961
and Rules, 1963 and the permanent classified employees of  such  Departments
are also entitled to be regularised accordingly.

8.    In view of  the  aforesaid,  it  is  submitted  that  the  daily  wage
employees are also entitled  to  the  aforesaid  benefits  at  the  time  of
superannuation as mentioned in the Scheme.”

            He, thus, submitted that if the petitioners  opt  for  the  said
scheme, they would get the benefits thereof after their retirement.

Before  we  consider  the  respective  submissions,  we  want  to  make  two
observations which are crucial to the issue involved.  These are:
      (i)   The matter is being examined in  the  contempt  jurisdiction  of
this Court.  From the chronology of events given, it  would  be  clear  that
initially these petitioners had claimed their classification as  'permanent'
to the respective posts.  They succeeded in  this  attempt  and  the  orders
passed therein in  their  favour  was  that  they  would  be  classified  as
'permanent' and that they would also be entitled to pay-scale  of  permanent
posts from the dates specified in the award given by the labour court.
            In  the  second  round  of  litigation,  out  of  which  present
contempt petitions arise, direction of the High Court is to grant them  pay-
scales attached to the posts to which they are working.
                 This order has been upheld by this Court as  well  inasmuch
as  Special  Leave  Petitions  filed  by  the  State  Government  have  been
dismissed by common orders dated 21st January, 2015.  However, there  is  no
specific direction for grant of increments.
(ii)  In order to implement the directions  of  High  Court,  against  which
special Leave Petitions  have  been  dismissed,  the  State  Government  has
passed order dated  11th  March,  2016  vide  which  the  pay-scale  of  the
petitioners has been fixed in the pay-scale attached to these  posts.   This
has also been given from the dates  to  which  these  petitioners  are  held
entitled to and on that basis arrears of pay have also been paid.   However,
the pay  is fixed at the minimum of the said pay-scales and  there  is  also
stipulation in the said orders dated 11th March, 2016 that  these  employees
would not be entitled to increment of salary.

It is clear from the above that the petitioners have been given pay  in  the
regular pay-scale.  Petitioners, however, have joined  issue  by  contending
that orders dated 11th March, 2016 do not carry out the complete  compliance
of the directions given by the High court that on fixation  of  pay  in  the
regular pay-scale  the  petitioners  are  also  entitled  to  increments  of
salary, as is given to the regular employees, on annual basis.

            Therefore, the question that arise for consideration  is  as  to
whether the petitioners are also entitled to the increments.

It is not in dispute that the petitioners were initially  engaged  on  daily
wage basis.  Their engagement was also done without following any  selection
procedure. It also does not emerge from record that the  initial  engagement
of these petitioners was against regular vacancies.   Normally,  in  such  a
situation even if these persons, because of their long service and  also  on
the assumption that they are discharging the same duties  as  discharged  by
regular employees, such employees can claim the salary which is  being  paid
to regular employees holding similar posts on the principles of  'equal  pay
for equal work'.  This aspect has  exhaustively  and  authoritatively  being
dealt with by this Court in a recent judgment dated 26th  October,  2016  in
Civil Appeal No. 213 of 2013, titled State of Punjab  and  Ors.  vs.  Jagjit
Singh and  Ors.[3]  and  other  connected  appeals,  though,  there  is  one
distinguished factor, viz. the petitioners herein have  been  conferred  the
status of 'permanent'  employees.   However,  an  important  question  which
arises is as to whether such 'permanent' employees  are  same  as  employees
appointed on 'regular' basis or  their  services  stand  regularized.   This
aspect shall be touched upon and dealt with a little later.  At this  stage,
reference is made to the aforesaid judgment in the  case  of  Jagjit  Singh3
for the purpose that even if principle of 'equal  pay  for  equal  work'  is
applicable and the pay in  the  regular  pay-scale  is  admissible  to  such
employees, these employees would be entitled to minimum of the regular  pay-
scale and not the increments.  This case is taken note of and  discussed  in
Jagjit Singh3 in the following manner:
“36. Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1],  decided  by
a  five-Judge  Constitution  Bench:  Needless  to  mention,  that  the  main
proposition canvassed in the instant judgment, pertained  to  regularization
of government servants, based on the employees having  rendered  long  years
of service, as temporary,  contractual,  casual,  daily-wage  or  on  ad-hoc
basis. It is, however relevant to mention, that the Constitution  Bench  did
examine the question of wages, which such employees were entitled  to  draw.
In paragraph 8 of the judgment, a reference was made to  civil  appeal  nos.
3595-612  of  1999,  wherein,  the  respondent-employees  were   temporarily
engaged on daily-wages in the  Commercial  Taxes  Department.  As  they  had
rendered service for more than 10 years, they claimed  permanent  employment
in the department. They also claimed benefits as were  extended  to  regular
employees of their  cadre,  including  wages  (equal  to  their  salary  and
allowances) with effect from the dates from which they were appointed.  Even
though the administrative tribunal had rejected their claim, by returning  a
finding, that they had not made out a case for payment of  wages,  equal  to
those engaged on regular basis, the High Court held that they were  entitled
to wages, equal to the salary of regular  employees  of  their  cadre,  with
effect from the date from which they were appointed.  The  direction  issued
by the High Court resulted in payment of higher wages  retrospectively,  for
a period of 10 and more years. It would also be relevant  to  mention,  that
in passing the above direction, the High Court had relied  on  the  decision
rendered by a three-Judge bench  of  this  Court  in  Dharwad  District  PWD
Literate Daily- Wage Employees Association v. State  of  Karnataka[(1990)  2
SCC 396]. The Constitution Bench, having  noticed  the  contentions  of  the
rival parties, on the subject of wages  payable  to  daily-wagers,  recorded
its conclusions as under:-

“55. In cases relating to service in the commercial  taxes  department,  the
High Court has directed that those engaged on daily  wages,  be  paid  wages
equal to the salary and allowances  that  are  being  paid  to  the  regular
employees of their cadre in government service, with effect from  the  dates
from which they were respectively appointed. The objection taken was to  the
direction for payment from the dates of engagement. We find  that  the  High
Court had clearly gone wrong in  directing  that  these  employees  be  paid
salary equal to the salary  and  allowances  that  are  being  paid  to  the
regular employees of their cadre in government  service,  with  effect  from
the dates from which they were respectively engaged  or  appointed.  It  was
not open to the High Court to impose such an obligation on  the  State  when
the very question before the High  Court  in  the  case  was  whether  these
employees were entitled to have equal pay for equal work so called and  were
entitled to any other benefit. They had also been engaged in  the  teeth  of
directions not to do so. We are, therefore, of the view that, at  best,  the
Division Bench of the High Court should have directed that  wages  equal  to
the salary that is being paid to regular employees be paid to  these  daily-
wage employees with effect from the date of its judgment. Hence,  that  part
of the direction of the Division Bench is modified and it is  directed  that
these daily-wage earners be paid wages equal to the  salary  at  the  lowest
grade of employees of their cadre in  the  Commercial  Taxes  Department  in
government service, from the date of the judgment of the Division  Bench  of
the High Court. Since, they are only daily-wage earners, there would  be  no
question of other allowances being paid to them. In view of our  conclusion,
that Courts are not expected to issue directions  for  making  such  persons
permanent in service, we set aside that part of the direction  of  the  High
Court directing the Government to consider their cases  for  regularization.
We also notice that the High Court has not adverted  to  the  aspect  as  to
whether it was regularization or it was giving  permanency  that  was  being
directed by the High Court. In such  a  situation,  the  direction  in  that
regard will stand deleted and the appeals filed by  the  State  would  stand
allowed to that extent. If sanctioned posts are vacant (they are said to  be
vacant) the State will take immediate steps for filling  those  posts  by  a
regular process of selection. But when regular  recruitment  is  undertaken,
the respondents in C.A. Nos. 3595-3612 and those  in  the  Commercial  Taxes
Department similarly situated, will be allowed to compete, waiving  the  age
restriction imposed for the recruitment and giving some weightage for  their
having been engaged for work in the Department for a significant  period  of
time. That would be the extent of the exercise of power by this Court  under
Article 142 of the Constitution to do justice to them.”

We have extracted the aforesaid paragraph, so as not to make  any  inference
on our own, but to project the determination rendered  by  the  Constitution
Bench, as was expressed by the Bench. We have no hesitation  in  concluding,
that the Constitution Bench  consciously  distinguished  the  issue  of  pay
parity, from the issue  of  absorption/regularization  in  service.  It  was
held, that on the issue  of  pay  parity,  the  High  Court  ought  to  have
directed, that the daily-wage workers be paid wages equal to the  salary  at
the lowest grade of their cadre. The Constitution Bench expressed the  view,
that the concept of equality  would  not  be  applicable  to  the  issue  of
absorption/regularization in service.  And conversely,  on  the  subject  of
pay parity, it was unambiguously held, that  daily-wage  earners  should  be
paid  wages  equal  to  the  salary  at  the  lowest  grade   (without   any
allowances). ”

Another significant reason for referring to the judgment  of  Jagjit  Singh3
is that the Court culled out the principles of 'equal pay  for  equal  work'
from the earlier judgments on the subject and collated them  at  one  place.
Further, the Court also drew an important distinction between the  grant  of
benefit of 'equal pay for equal work' to  temporary  employees  on  the  one
hand and the status of regular employees on  the  other  hand.   Insofar  as
parameters of principles of 'equal pay for equal work' deduced by the  Court
are concerned (para 42), our purpose of  deduction  stated  in  sub-para  vi
thereof is important, which is reproduced below:
“(vi) For placement in a  regular  pay-scale,  the  claimant  has  to  be  a
regular appointee. The claimant should have been selected, on the  basis  of
a regular process of recruitment.  An  employee  appointed  on  a  temporary
basis, cannot claim to be placed in the  regular  pay-scale  (see  –  Orissa
University of Agriculture & Technology Vs. Manoj K. Mohanty[4]). ”

Insofar as distinction between pay parity and regularisation of  service  is
concerned, referring to the Constitution Bench judgment in  Uma  Devi2,  the
Court made the following observations:
“We are of the considered view, that in paragraph 44  extracted  above,  the
Constitution Bench clearly distinguished  the  issues  of  pay  parity,  and
regularization in service. It was held, that on the  issue  of  pay  parity,
the concept of ‘equality’ would be applicable (as had  indeed  been  applied
by the Court, in various decisions), but the principle of  ‘equality’  could
not be invoked for absorbing temporary employees in Government  service,  or
for making temporary employees regular/permanent. All the observations  made
in  the   above   extracted   paragraphs,   relate   to   the   subject   of
regularization/permanence, and not, to  the  principle  of  ‘equal  pay  for
equal work’. As we  have  already  noticed  above,  the  Constitution  Bench
unambiguously held, that on the issue of pay parity, the  High  Court  ought
to have directed, that the daily-wage workers be paid  wages  equal  to  the
salary, at the lowest grade of their cadre. This deficiency was  made  good,
by making such a direction. ”

            Thus, it follows that even if principle of 'equal pay for  equal
work' is applicable, temporary employee shall be entitled to minimum of  the
pay-scale which is attached to the post, but without any increments.

Insofar as petitioners before us are concerned they have been classified  as
'permanent'. For this reason, we advert  to  the  core  issue,  which  would
determine the fate of these cases, viz.,  whether  these  employees  can  be
treated as 'regular' employees in view of the aforesaid  classification?  In
other words,  with  their  classification  as  'permanent',  do  they  stand
regularized in service?

For this purpose, we would first like to refer  to  the  provisions  of  the
Madhya Pradesh Industrial Employment (Standing Orders)  Act,  1961  and  the
Rules made thereunder known as  the  Madhya  Pradesh  Industrial  Employment
(Standing Orders) Rules, 1963. Section 3(c) of  the  Act  defines  “Standing
Orders” and as per Section 6, the State  Government  may,  by  notification,
apply Standard Standing Orders to such class of undertakings and  from  such
date  as  may  be  specified  therein.    Section  21  empowers  the   State
Government to make rules to carry out the purposes of  the  said  Act  which
are required to be notified.  It empowers  the  State  Government  to  frame
Standard Standing Orders as  well.   It  is  in  exercise  of  powers  under
Section 21(1) of the  Act  that  the  State  Government  has  framed  Madhya
Pradesh Industrial Employment (Standing  Orders)  Rules,  1963  (hereinafter
referred to as the 'Rules'). Annexure   to  these  Rules  contains  standard
Standing Orders for all undertakings in the State.  Standing Order No. 2  of
this Order enumerates classification of employees  which  has  already  been
reproduced above.  As per this classification, an  employee would  be  known
as 'permanent employee' who has completed six months'  satisfactory  service
in a clear vacancy in one or more posts whether on  probation  or  otherwise
or a person whose name has been entered in the muster roll and who is  given
a ticket of 'permanent employee'.  It follows from the above that merely  by
putting in six months' satisfactory service, an employee can be  treated  as
'permanent employee'.  Rights which would flow to  different  categories  of
employees including 'permanent employee' are not stipulated in  these  Rules
or even in the parent Act.  It can be gathered from  Rule  11  of  the  said
Rules, which relates to  termination  of  employment,  that  in  case  of  a
'permanent employee' one month's notice or wages for one month  in  lieu  of
notice is required when the employment of a 'permanent employee'  is  to  be
terminated.  On the other hand, no such notice or wages in lieu  thereof  is
needed  to  be  given  to  any  other  category  of  employees.   Additional
obligation casts on the employer is to record  reasons  for  termination  of
service in writing and communicate the same to the employee.

With this, we advert to the question posed above.  In the first blush,  this
question appears to be somewhat puzzling, as to  how  such  a  question  can
arise  because  normally  an  employee  who  is  given  the  designation  of
'permanent employee' should  be  treated  as  'regular  employee'  as  well.
However, this puzzle vanishes when we examine the standing orders, acts  and
rules in  question  under  which  designation  of  'permanent  employee'  is
acquired. Fortunately for us, we are not trading on a virgin territory.

This Court has already examine the  issue  in  the  context  of  these  very
standing orders of Madhya Pradesh.  In the case of Mahendra L. Jain  &  Ors.
v. Indore Development Authority & Ors.[5], this Court analyzed the  Standard
Standing Order in question and held that permanent classification  does  not
amount to regularization, inasmuch as it was noted that the matter  relating
to the recruitment is governed by a separate statute, as can  be  seen  from
the following discussion therein:
“28.  The  1961  Act  provides  for  classification  of  employees  in  five
categories. The 1973 Act, as noticed  hereinbefore,  clearly  mandates  that
all posts should be sanctioned by the State Government and all  appointments
to the said cadre must be made by  the  State  Government  alone.  Even  the
appointments to the local cadre must be made  by  the  Authority.  The  said
provisions were not complied  with.  It  is  accepted  that  no  appointment
letter was issued in favour of the appellants. Had the appointments  of  the
appellants been made in terms of the provisions of  the  Adhiniyam  and  the
Rules framed thereunder, the respondent Authority was  statutorily  enjoined
to make an offer of appointment in writing which was to be accepted  by  the
appellants herein. Who made  the  appointments  of  the  appellants  to  the
project or other works carried on by the Authority  is  not  known.  Whether
the person making an appointment had the requisite jurisdiction  or  not  is
also not clear. We have noticed hereinbefore that in the case of Om  Prakash
Mondloi, the CEO made an endorsement to the effect that he may be  tried  in
daily wages and should be entrusted with the work of progress collection  of
ODA work. The said order is not an “offer of appointment” by  any  sense  of
the term.

                         xxx         xxx        xxx

31.  The Standing Orders governing the terms and conditions of service  must
be read subject  to  the  constitutional  limitations  wherever  applicable.
Constitution being the suprema lex, shall prevail over all  other  statutes.
The only provision as regards recruitment of the employees is  contained  in
Order 4 which merely provides that the manager shall within a period of  six
months, lay down the procedure for recruitment of employees  and  notify  it
on the notice board on which Standing Orders are exhibited  and  shall  send
copy thereof to the Labour Commissioner. The matter relating to  recruitment
is governed by the 1973 Act and the  1987  Rules.  In  the  absence  of  any
specific directions contained in  the  Schedule  appended  to  the  Standing
Orders, the statute and the statutory rules applicable to the  employees  of
the respondent shall prevail.”

The issue  came  up  again  in  the  case  of  M.P.  State  Agro  Industries
Development Corporation Ltd. & Anr. v. S.C.  Pandey[6]  wherein  this  Court
held that only because a temporary employee has completed 240 days of  work,
he would not be entitled to be  regularized  in  service.   The  Court  also
reiterated that the Standing Orders categorize the nature of employment  and
do not classify individual employees in  different  post  according  to  the
hierarchy created in the Department and thus proviso  to  Rule  2  does  not
apply to promotions or regularization in higher grade.   We  would  like  to
reproduce following paras from the said judgment:
“17. The question raised in this appeal is now  covered  by  a  decision  of
this Court in M.P. Housing Board v. Manoj Shrivastava  [(2006)  2  SCC  702]
wherein this Court clearly opined that: (1) when the conditions  of  service
are governed by two statutes; one relating to selection and appointment  and
the other relating to the terms and  conditions  of  service,  an  endeavour
should be made to give effect to both of the  statutes;  (2)  a  daily-wager
does not hold a post as he is not appointed in terms of  the  provisions  of
the Act and the Rules framed thereunder and in that view of  the  matter  he
does not derive any legal right; (3)  only  because  an  employee  had  been
working for more than 240 days that by itself would  not  confer  any  legal
right upon him to be regularised in service; (4) if an appointment has  been
made contrary to the provisions of the statute the same would  be  void  and
the effect thereof would be that no legal right was derived by the  employee
by reason thereof.

18. The said decision applies on all fours to the facts  of  this  case.  In
Mahendra L. Jain [(2005) 1 SCC 639 : 2005 SCC  (L&S)  154]  this  Court  has
categorically  held  that  the  Standing  Orders  governing  the  terms  and
conditions of service  must  be  read  subject  to  the  constitutional  and
statutory limitations for the purpose of appointment  both  as  a  permanent
employee or as a temporary  employee.  An  appointment  to  the  post  of  a
temporary employee can be made where the work is  essentially  of  temporary
nature. In a case where there existed a vacancy, the same  was  required  to
be filled up  by  resorting  to  the  procedures  known  to  law  i.e.  upon
fulfilling the constitutional requirements as also the provisions  contained
in the 1976 Regulations. No finding of fact has been arrived at that  before
the respondent was appointed, the constitutional and statutory  requirements
were complied with.

                          xx          xx         xx

22.  Such appointments, in our opinion, having regard to  the  decisions  in
Mahendra L. Jain [(2005)  1  SCC  639  :  2005  SCC  (L&S)  154]  and  Manoj
Shrivastava [(2006) 2 SCC 702] must be made in accordance with extant  rules
and regulations. It is also a well-settled legal position that only  because
a temporary employee has completed  240  days  of  work,  he  would  not  be
entitled to be regularised in service. Otherwise also the legal position  in
this behalf is clear as  would  appear  from  the  decision  of  this  Court
inDhampur Sugar Mills Ltd. v. Bhola Singh [(2005)  2  SCC  470  :  2005  SCC
(L&S) 292] apart from Mahendra L. Jain [(2005) 1 SCC 639 :  2005  SCC  (L&S)

A direct judgment on the subject is State of M.P.  &  Ors.  v.  Lalit  Kumar
Verma[7]  wherein  it  was  held  that  a  workman  would  be  entitled   to
classification  as  permanent  or  temporary  employee  if  the   conditions
precedent are satisfied.  It was held that the respondent was not  appointed
against the clear vacancy, he was not  appointed  in  a  permanent  post  or
placed on probation.  This Court, thus, held that  working  on  daily  wages
alone would not entitle him to the status of permanent employee.  Para 7  of
this judgment needs to be looked into.
“7. A workman, therefore, would be entitled to classification  of  permanent
or temporary employee, if the conditions precedent therefor  are  satisfied.
The respondent was not  appointed  against  a  clear  vacancy.  He  was  not
appointed in a permanent post or placed on probation. He had also  not  been
given a ticket of permanent employee. Working on  daily  wages  alone  would
not entitle him to the status of a permanent employee.”

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

We  may  mention,  at  this  stage  that  this  aspect  has  come   up   for
consideration, in another context, in State of  Madhya  Pradesh  and  Others
vs. Dilip Singh Patel and  Others[8].   That  was  a  case  where  similarly
situated employees, who were classified as 'permanent employees'  under  the
Standing Orders 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. 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 mi8nimum 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.”

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.

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.  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]).

These contempt petitions are, accordingly, dismissed.

                                                                (A.K. SIKRI)

                                                               (N.V. RAMANA)
DECEMBER 15, 2016.
[1]   Writ Appeal No. 322/2009; Order dated 30.11.2009; By High Court of
M.P., Gwalior Bench
[2]   (2006) 4 SCC 1
[3]   Civil Appeal No. 213 of 2013; 26th October, 2016
[4]   (2003) 5 SCC 188
[5]   (2005) 1 SCC 639
[6]   (2006) 2 SCC 716
[7]   (2007) 1 SCC 575
[8]   Civil Appeal Nos. 8431-8432 of 2014; decided on August 27, 2014.
[9]   (1997) 6 SCC 766

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.