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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 ..... and, 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. The issue came up again in the case of M.P. State Agro Industries Development Corporation Ltd. and Anr. v. S.C. Pandey [ 2006 (2) TMI 721 - SUPREME COURT] 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. 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. Contempt petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Leave Petition (C) No. 18413/2014, Contempt Petition (Civil) No. 475/2016 in Special Leave Petition (C) No. 8203/2012, Contempt Petition (Civil) No. 536/2016 in Special Leave Petition (C) No. 19393/2012 and Contempt Petition (Civil) No. 106/2016 in Special Leave Petition (C) No. 19292/2012 For the Petitioner : Mr. N.K. Mody, Sr. Adv. Mr. Ankur Mody, Adv. Mr. Adarsh Tripathi, Adv. Ms. Apurva Shukla, Adv. Mr. Amlan Kumar Ghosh, Adv. M/s. S.M. Jadhav & Company, Adv. Mr. B. S. Banthia, Adv. Mr. S. K. Verma, Adv. Ms. Manju Jetley, Adv. Mr. Akshat Shrivastava, Adv. For the Respondent : Mr. Arjun Garg, Adv. Mr. Isham Nagar, Adv., Mr. C. D. Singh, Adv JUDGMENT A.K. Sikri, J. 1. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month 15330/- 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. 3. 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-sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n apprentice if he has had 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. 6. 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. 7. 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. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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. 11. It is clear from the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... madevi [(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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arity, 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. 15. 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., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation casts on the employer is to record reasons for termination of service in writing and communicate the same to the employee. 17. 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. 18. 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 and Ors. v. Indore Development Authority and Ors. (2005) 1 SCC 639, 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 clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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. 21. 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 employee'. 22. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of Madhya Pradesh and Ors. v. Dilip Singh Patel and Ors. Civil Appeal Nos. 8431-8432 of 2014; dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. 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. 24. 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 and Anr. v. T.K. Suryanarayan and Ors. (1997) 6 SCC 766). 25. These contempt petitions are, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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