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TMI Blog2016 (12) TMI 1882X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (C) No. 19230/2014, Contempt Petition (Civil) Nos. 121-131/2016 in Special Leave Petition (C) No. 8473/2012, 19394/2012, 23980/2012, 23981/2012, 23986/2012, 34868/2012, 38228/2012, 38231/2012, 38235/2012, 38236/2012, 19236/2014, Contempt Petition (Civil) No. 735/2015 in Special Leave Petition (C) No. 19278/2014, Contempt Petition (Civil) Nos. 793-817/2015 in Special Leave Petition (C) No. 20025/2011 and 19396/12, Special Leave Petition (C) No. 30275/2012, Special Leave Petition (C) No. 30276/2012, Special Leave Petition (C) No. 1577/2013, Special Leave Petition (C) No. 5597/2013, Special Leave Petition (C) No. 29683/2013, Special Leave Petition (C) No. 19095/2014, Special Leave Petition (C) No. 19282/2014, Special Leave Petition (C) No. 19251/2014, Special Leave Petition (C) No. 25279/2012, Special Leave Petition (C) No. 12438/2013, Special Leave Petition (C) No. 12433/2013, Special Leave Petition (C) No. 5350/2013, Special Leave Petition (C) No. 19221/2014, Special Leave Petition (C) No. 19260/2014, Special Leave Petition (C) No. 19257/2014, Special Leave Petition (C) No. 19206/2014, Special Leave Petition (C) No. 25277/2012, Special Leave Petition (C) No. 19094/2014, Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Dismissed. 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). 2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a person is appointed on regular basis or whose services are regularised, which has not happened in the case of the Petitioners. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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. 10. Before we consider the respective submissions, we want to make two observations which are crucial to the issue involved. These are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. Jagjit Singh and Ors. Civil Appeal No. 213 of 2013; 26th October, 2016 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 Singh Civil Appeal No. 213 of 2013; 26th October, 2016 for the purpose that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daily-wage earners should be paid wages equal to the salary at the lowest grade (without any allowances). 13. Another significant reason for referring to the judgment of Jagjit Singh Civil Appeal No. 213 of 2013; 26th October, 2016 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 v. Manoj K. Mohanty (2003) 5 SCC 188). 14. Insofar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 in Dhampur 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) 154]. 20. A direct judgment on the subject is State of M.P. and Ors. v. Lalit Kumar Verma (2007) 1 SCC 575 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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