--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S C SHARMA, J WRIT PETITION NO. 4103 / 2009 (S) SANTOSH SHARMA Vs. STATE OF MP & ORS., * * * * * [ J U D G M E N T ] ( 9/11/2010) The petitioner before this Court has filed this present petition claiming regular pay scale i.e. pay scale of Rs.750-945/-w.e.f. 14.05.1996 and is also aggrieved by order dated 17.12.2008 (Annexure P/10) by which the claim of the petition for regular pay scale has been turned down. . 2. The contention of of the petitioner is that he was appointed by an order dated 3/9/1990 as a daily wager on the post of Peon and after completion of five years' of service, the case of the petitioner was considered by respondents for grant of regular pay scale keeping in view the circular issued by the State Government dated 17.03.1978. The petitioner further stated that a Screening Committee was constituted by the Department to consider the cases of daily wagers and an order was passed granting regular pay scale of Rs.750-945/- on 14.05.1996. The petitioner further stated that as many as 68 employees were granted regular pay scale, however, the order in respect of the petitioner was kept in abeyance on 29.06.1996 by the Collector and the order was later on cancelled by the State Government on 8th October, 2004 (annexure P/2). The petitioner's contention is that in the order passed by the State Government the --- 2 --- solitary reason assigned was that the petitioner was appointed after 31.12.1988 and, therefore, he was not entitled for regularisation as well as for grant of regular pay scale. 3. Learned counsel for the petitioner has also brought to the notice of this Court that the order dated 8th October, 2004 (annexure P/2) was subjected to judicial scrutiny in a writ petition i.e. W.P.No.1512 of 2004 filed by one Baliram Baghel and the writ petition filed by Baliram Baghel was allowed on 14th September, 2005. The impugned order passed by the State Government dated 8th October, 2004 was also quashed. Learned counsel for the petitioner has further submitted before this Court that a writ appeal was preferred by the State of Madhya Pradesh and the same was registered as writ appeal No.128 of 2006. The Division Bench of this Court has dismissed the writ appeal by passing an order on 11.11.2006. A SLP was also preferred in the matter and the Apex Court has also dismissed the SLP preferred by the State of Madhya Pradesh. 4. A writ petition was preferred by the petitioner i.e. writ petition No.9271 of 2009 (s) and the same was disposed of by this Court by an order dated 17/12/2009. This Court while quashing order dated 08.10.2008 also observed that the petitioner would be entitled for the benefits accrued to him by virtue of order dated 14.05.1996 till the fresh decision is taken in the matter. 5. The petitioner further stated that in the meanwhile a show-cause notice was issued to the petitioner on 05.08.2008 and thereafter the respondents have passed an order dated 17.12.2008 by which the order granting regular pay scale to the petitioner has been --- 3 --- cancelled. The petitioner is aggrieved by the aforesaid order. 6. Learned counsel for the petitioner has also argued before this Court that large number of employees, who are identically placed like Baliram Baghel, petitioner of W.P. No.1512 of 2004, are receiving the regular pay scale and, therefore, the action of the respondents in discriminating the petitioner is violative of Articles 14, 16 and 21 of the Constitution of India. It has also been argued before this Court that Baliram Baghel, an identically placed person, is being paid regular pay scale. 7. A reply has been filed on behalf of respondents-State and the respondents-State has admitted that the petitioner was appointed as peon and the respondents have also admitted issuance of order dated 14.05.1996 by which pay scale of Rs.750-945/- was granted to the present petitioner along with one Baliram Baghel. The contention of the respondents-State is that the circular dated 17.03.1978 has been withdrawn by the State Government and another circular has been issued by the respondents-State dated 09.01.1990 (annexure R/3) and, therefore, the petitioner as he was appointed after 31.12.1988 is not entitled for regularisation and is also not entitled for grant of regular pay scale. 8. The respondents-State further submitted that in the matter of Baliram Baghel as no opportunity of hearing was granted to Shri Baliram Baghel, the order passed by State Government dated 8th October, 2004 was set aside by this Court by an order dated 14.09.2005 and as there was an order in favour of Baliram Baghel they were left with no choice except to give regular pay scale to Shri Baliram Baghel. 9. Learned Government Advocate vehemently argued --- 4 --- before this Court that the case of the petitioner is distinguishable on facts, as in the case of petitioner they have issued show-cause notice and after hearing the petitioner, they have passed the impugned order dated 17.12.2008. 10. Learned Government Advocate for respondents-State vehemently argued before this court that by virtue of circular dated 09.01.1990 and keeping in view the judgment delivered by the Apex Court in the case of State of Karnatak Vs. Uma Devi, petitioner is not entitled for regularisation as also for grant of regular pay scale and the present writ petition deserves to be dismissed. 11. Heard leaned counsel for the parties at length and perused the record. 12. In the present case, it is an admitted fact that the petitioner was appointed as Peon under the contingency establishment as a daily wager by an order dated 01.02.1991. It is also an admitted fact that the petitioner was considered for grant of regular pay scale and not for regularisation by the Screening Committee constituted by the Department and an order was passed on 14.05.1996 granting regular pay scale of Rs.750-945/- to the petitioner along with 68 other employees. The order was stayed by the Collector on 29.06.1996 and finally it was cancelled by State Government on 8th October, 2004 and the reason assigned in the aforesaid order of the State Government was that the petitioner as he was appointed after 31.12.1988 was not entitled for regularisation. One Baliram Baghel, who was also a beneficiary of regular pay scale, which was granted to him by virtue of order dated 14.05.1996 came up before this Court and this Court in the case of Baliram Baghel has passed the following order:- “This order shall also govern the field --- 5 --- of Writ Petition No.5968/2003 (OA.1019/96) and W.P. (S) No.1514 of 2004. 2. The contention of the learned counsel for the petitioner is that earlier the petitioner was appointed as contingency paid employee. Later on vide order dated 14-5-96 his services were reguralised and he was directed to be paid the regular pay-scale of Rs.750-945/-. The contention of learned counsel for petitioner is that the order of regularisation was issued on the basis of completion of five years contingency paid employees. Thereafter, without issuing any show cause notice by stroke of pen, all of a sudden on 08-10-2004, the order of regularisation dated 14-5-96 has been cancelled. As a result of which the petitioner has again become contingency paid employee. 3. There is merit in the contention of Shri Sethi, learned counsel for the petitioner that after having enjoyed the fruits of regularisation for a considerable long period of eight years, it is the demand of natural justice to issue show cause notice to the petitioner if any of the service conditions of the petitioner is hampered or before putting any dent on it. Since admittedly the petitioner had served as regular employee under the work-charge establishment for a considerable long time of eight years, the view of this Court is that before cancelling the said order an opportunity should have been given to the petitioner. Since admittedly this has not been done, the view of the Court is that the same cannot be allowed to remain stand and is hereby quashed. The respondents are hereby directed that the petitioner would be deemed to have been continued as regular employee without any break and also consequential benefits to which he is entitled to shall be granted to him. --- 6 --- 4. Eventually, all the three petitions succeed and are hereby allowed. The impugned order dated 8.10.2004 is hereby quashed.” 13. Learned Single Judge has quashed the order dated 8th October, 2004 meaning thereby the order dated 14.05.1996 granting regular pay scale was restored. Thereafter, a writ appeal was preferred by State of Madhya Pradesh before the Division Bench of this Court and the Division Bench of this Court in writ appeal No.128 of 2006 has passed the following order:- “Heard on admission. By this appeal, the appellant State has assailed the order dated 14.01.2005 passed in W.P.(S) No.1512/2004 by which 3 petitions including the present petition were decided by the learned Single Judge and it was directed that the employee who was de- regularised, shall be deemed to have been continued as regular employee without any break. A similar Writ Appeal No.131/2006 has been dismissed by order dated 10.11.2006. Thus, for the reasons stated in the said order, this appeal is dismissed.” 14. The aforesaid order reflects that the Division Bench of this Court has affirmed the order passed by learned Single Judge, meaning thereby Baliram Baghel was granted regular pay scale by virtue of order dated 14.05.1996. Not only this, SLP preferred by the State of Madhya Pradesh was also dismissed by the Apex Court. 15. In the present case, the petitioner as he was also a beneficiary of order dated 14.05.1996 submitted a representation before the respondents and as nothing was being done in the mater of grant of regular pay scale keeping in view the judgment delivered by this Court in the case of Baliram Baghel, the petitioner was left with --- 7 --- no other choice except to approach this Court. The present petitioner preferred a writ petition i.e. W.P.No.9271 of 2009 (s) and the same was disposed of by this Court by an order dated 17/12/2009. This Court while quashing order dated 08.10.2008 also observed that the petition would be entitled for the benefits accrued to him by virtue of order dated 14.05.1996 till the fresh decision is taken in the matter. The respondents-State has thereafter issued a show-cause notice and finally has passed the impugned order dated 17.12.2008 by which earlier order passed by respondents dated 14.05.1996 has been withdrawn. 16. This Court has carefully gone through the order dated 14.05.1996 as well as order dated 17.12.2008 and the order dated 14.05.1996 reveals that cases of those employees who have completed 5 years' service in the contingency establishment were considered for grant of regular pay scale in the light of circular dated 17.03.1978 and as many as 68 person were granted regular pay scale including the petitioner along with Shri Baliram Baghel, petitioner of W.P. No.1512 of 2004. The petitioner at the relevant point of time was having 5 years' of experience and he was granted regular pay scale and not the benefit of regularisation. The learned counsel for the petitioner confined his prayer in the present writ petition for grant of regular pay scale as has been granted to Shri Baliram Baghel by virtue of order dated 14.05.1996 and has also reserved his right to take appropriate action in accordance with law for ventilating his grievance in respect of regularisation. 17. This Court has carefully gone through impugned order dated 17.12.2008 (annexure P-10) as well as annexure R-3 issued by General Administration Department. Annexure R-3 nowhere reflects --- 8 --- that the earlier circular of the State Government dated 17.03.1978 has been withdrawn. The circular of General Administration Department dated 09.01.1990 imposes a ban in respect of appointment of contingency paid employees in a establishment where no sanctioned post is available. It does not deal with grant of regular pay scale at all and the fact remains that identically placed persons have been granted regular pay scale by virtue of various orders passed by this Court from time to time including Shri Baliram Baghel, petitioner of writ petitioner No.1512 of 2004. 18. This Court is of the considered opinion that as the name of the petitioner was also included in the order dated 14.05.1996 along with Baliram Baghel, therefore, he cannot be discriminated in the matter of grant of regular pay scale as has been granted to Shri Baliram Baghel and other identically placed persons and, therefore, once the benefit has been extended to identically placed persons and they are enjoying the regular pay scale, there appears to be no justification in denying the benefit of regular pay scale to the present petitioner. Resultantly, the impugned order dated 17.12.2008 is hereby quashed. No order as to costs. (S C SHARMA) J U D G E KR