^.- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. 5<7s~'?/2007 PETITIONER :- /^hyam Sunder Jaiswal aged about 35 years, S/o Late Shri Mahettar Ram Jaiswal working as Water Man in Tribal Boys Aashram, Kuruwar, Block Kota, Tahsil Kota, District Bilaspur [C.G.]. VERSUS RESPONDENTS B^"" P'"" ^iir' State of Chhattisgarh, through- Secretary, Scheduled Tribe, lo^-<^ Scheduled Caste, OBC and ^y^.y'^ ....••• Minority Welfare and ^.7,-r<^'^ ,..•" pevelopment Mantralaya, D.K.S. >cV-°rcC\s r ' Shavan, Raipur.[C.G.]. '2] Commissioner, Department of ^> Scheduled Tribe, Scheduled ^^\^->^^} Caste, OBC, and Minority *^€^ /i\-*>^ .ef^ ?.evTl.opme?.t'. pt". Ravishanka.r iS^ . </\v <i.N< ^' i^ ^ ^ ^^ Shukla University Campus, Raipur [C.G.]. ^S^The Collector, [Tribal Development], District Bilaspur ,,/4']' Assistant Commissioner [Tribal Development] District Bilaspur ^S\ WRIT PETITION UNDER ARTICLE 226 OF THE ^ CONSTITUTION OF INDIA FOR^SSUANCE OF WRIT IN THE NATURE OF MANDAMUS, CERTIORARI AND FOR OTHER SUITABLE WRIT OR WRITS. ORDER OR ORDERS. DIRECTION OR DIRECTIONS The humble petition of the petitioner above named most respectfully sweweth: - 1] PARTICULARS OF THE PETITIONER:- As per the cause title above. f;l '•ili J AFf^ ^' HiGHCOURTOF_CHHATriSGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.3221 OF 2006 Bhagwan Das Manikpuri Versus State of Chhattisgarh & Others And W.P.Nos.3277, 3398, 3611, 6125, 6126, 6127, 6128, 6129,6130, 6131, 6426, 6427 & 6428of2006 and W.P.(S) Nos.2959, 2960, 2961 & 2975 of 2007. Post for pronouncement of the orders on the _.2o"day of January, 2010 Sd7- Satish K. Agnihotri Judge Twvee^fg, (•ilMWiSii'U, B HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.3221 OF 2006 Bhagwan Das Manikpuri Versus State of Chhattisgarh & Others And W.P.Nos.3277, 3398, 3611, 6125, 6126, 6127,6128,6129,6130, 6131, 6426, 6427 & 6428 of 2006 and W.P.(S) Nos.2959, 2960, 2961 & 2975 of 2007. (Writ petitions under Article 226/227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Ashok Swarnkar, counsel for the petitioners. Shri Y.S. Thakur, Dy. Advocate General forthe State. O R D ER (Delivered on this ^o"'day of January, 2010) 1. Since W.P.Nos.3221, 3277, 3398, 3611, 6125, 6126, 6127, 6128, 6129, 6130, 6131, 6426, 6427 & 6428 of 2006 and W.P.(S) Nos.2959, 2960, 2961 & 2975 of 2007 involve the same question of law asto whether the petitioners are entitled to revised pay scales in accordance with the M.P. Workcharged and Contingency Paid Employees Pay Revision Rules, 1998 (for short "the Rules, 1998"). The facts of these writ petitions are also common and, as such, they are being disposed of by this common order. 2. The facts, in nutshell, as projected by the petitioners, are that the petitioners have been appointed as Cook, Water Man, Cook, Water Man, Water Man, Water Man, Water Man, Cook, Cook, ^SSft /^". '%. ^<^' %aC^' Watchman, Water Man, Cook, Water Man, Cook, Water Man, Cook, Water Man and Watchman, respectively in various hostels/establishments by the Collector, Bilaspur, by fixing monthly pay initially for 89 days. Thereaftfer, the same continued and the petitioners are still working on monthly basis from contingency fund. By order dated 17-7-1990 (Annexure - P/2in W.P. No.3221 of 2006) the services of the petitioners as contingency paid employees were regularized. Fourth pay scale was granted, however, the benefit of fifth pay scale as revised was not granted to the petitioners, despite the fact that the same has been accepted by the State Government and the Rules, 1998 were made thereon. Some of the similarly situated employees namely; Shri Bholaram Anant, Water Man, Scheduled Caste Boys Hostel, Nawan, Pandariya, District Kawardha and other persons posted in the office of Assistant Commissioner, Tribal Development, Bilaspur namely; Shri Jaldas, Shri Gaurishankar Dubey and other similarly situated employees who were appointed after 31-12-1988 are also receiving the benefit of revised pay scale on the basis of recommendation of Fifth Pay Commission. The petitioners are being denied the benefit of fifth pay scale. Thus, these petitions. Shri Swarnkar, learned counsel appearing for the petitioners, would submit that Secretary to the then State of Madhya Pradesh, Finance Department by circular dated 26-6-1998 (Annexure - P/7 in W.P. No.3221 of 2006) issued guidelines for grant of revised pay scale w.e.f. 1-1-1996 in accordance with the provisions of the Rules, 1998. Despite the circular issued in the name of Governor no steps have been taken till date for grant of relief w.e.f. 1-1-1996. The petitioners are entitled to the benefit of fifth pay scale in accordance with the Rules, 1998 as well as circular dated 26-6-1998 (Annexure - P/7 in W.P. No.3221 of 2006). Some of the petitioners approached this Court earlier raising their grievances. In W.P.No.123 of 2006 (Bhagwan Das Manlkpuri v. State of Chhattisgarh SOthers) the coordinate Bench of this Court by order dated 12-1-2006 (Annexure - P/10 in W.P. No.3221 of 2006) disposed of the petition reserving liberty to the petitioner therein to make a detailed representation to the authorities concerned. It was further directed that in the event representation was submitted, the competent authority of the respondents therein would decide the same on its own merits as expeditiously as possible preferably within a period of three months from the dateof receipt of the representation. Bhagwan Das Manikpuri made a representation accordingly to the Assistant Commissioner, Tribal Welfare, Bialspur, on 25-1- 2006 (Annexure - P/11 in W.P. No.3221 of 2006). The said representation was rejected by order dated 19-5-2006 (Annexure - P/12 in W.P. No.3221 of 2006) on the ground that Bhagwan Das was not found fit for regularization and consequently the benefit of fifth pay scale was not granted, as his appointment was made after 31-12-1988. On the other hand, Shri Thakur, learned Dy. Advocate General appearing for the State, would submit that the petitioners were appointed after 31-12-1988, thus in view of the circular dated 22-11-1988 (Annexure - R/1) the petitioners are not entitled to the benefit of revised pay scale. The petitioners were not even entitled to fourth pay scale, which was wrongly given to them. The benefit of revised pay scale granted t'o Shri Jaldas and Shri Gaurishankar Dubey was because of typographical error. The petitioners cannot claim the benefit of pay scale on the ground that the same has been granted to others. 6. I have heard learned counsel appearing for the pari:ies, perused the pleadings and the documents appended thereto. 7. The identical issue came into consideration with regard to gangmen in Govind & Others v. State of C.G. & Others wherein this Court observed as under: "8, Rule 2 (b) & ( h) of the Rules 1976 and Rule 2 (a) & (b) of the Rules, 1979 define 'contingency paid employee' and 'workcharged employee', similarly, as under:- Rule 2.(b) and 2.(h) ofthe Rules, 1976:- "2.(b) 'Contingency-paid Employee' means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to "office Contingencies", excluding the employees who are employed for certain periods only in the year" "2.(h) 'Workcharged Employee' means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of departmental ^- ' 2007(2)ccu 29 labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster roll employed on the work." Rule 2.(a) and 2.(b) ofthe Rules, 1979:- "2. Definitions. - In these rules, unless the context otherwise requires,- (a) "Contingency paid employee" means a person employed for full time in an pffice or establishment and who is paid on monthly basis and whose pay is charged to office contingencies excluding the employees who are employed for certain period only in a year; (b) "Work-charged employee" means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of the departmental labour, store, running and repairs of electricat equipment and machinery in connection with such work, excluding the daily paid labour and muster-roll employee employed on the work." 9. Rule 2(c) of the Rules 1979 defines the word 'Permanent Employee' which reads as under:- "2 (c). 'Permanent employee' means a contingency paid employee or a work- charged employee who has completed fifteen years of service or more on or after thelstJanuary, 1974." B- {Provided that in respect of a contingency paid employee or a work charged employee who has attained the age of superannuation on or after the First April 1981, permanent employee means an employee who has completed 10 years of service on or after the 1st January, 1974.} 12. The petitioners, working as gangmen, are workcharged employees, as the petitioners were employed upon the execution of work of the Public Works Department. The daily paid labours and muster roll employees on the work are excluded from the definition of the workcharged employees as prescribed in Rule 2 (h) of the Rules 1976. The permanent employees are contingency paid employees or workcharged employee who have completed 15 years of service or more on or after 1.1.1974. Casual labourgangs and permanent gangs are provided in Public Works Department Manual (for short 'the P.W.D. Manual'). Para 4.003 of the said P.W.D. manual provides for registration and payment of daily casual labour regular labour gangs, as under:- "4.003. (A) Casual Labour Gangs.- When work is to be done by daily casual labour gangs, the subordinate incharge shall prepare a muster roll, which will show the names of the work-people, their attendance, the work done and the amount payable on this account. 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'Ajenuer |. uo OJOLU JQ sjesA 31. jo^ eoi/uss ui ussq eAeq oqM saeAoiduje ipied AousCuituoo. pue ,p96je40>|JOM, sqt ieq) P|94 SBM }] SUOISIAOJd QU^ ||B 6u!U!LUBxe jsye (ejdns) puiAog u| •Q •pun^ Aou86u]tuoo LUOJ^ siseq A|L|}UOLU uo petuiodde usaq eAsq oqm OS|B sseAoidLue jeqio jo sseAo|dLUS pied Aous6ui)uoo pue peSjeqo^jOM tuauBLUjed sje oqM 8|qeo!|ddB si SLUBS SL)) jei^ieqM o}se ajeqMAue pauysp ueeq iou seq )| 'eipui ^o UOOTIISUOO 84} ^o 602 SP'W (3) osiAojd Qift jspun joModS)! ^o ssiojaxs ui peujejj. SBM aujes 841 '9661.-9-9Z psiep (^ieuipjoejtxa) 8U82eg -d'l/\l ui eLues 9L|} ^o uoi^eoiiqnd uo SOJQ^ o)ui eLueo 9561. 'ss|ny uoisiAsy Aed '9 10 entitled to revised pay scale after the period of three years or otherwise from the date of appointment as workcharged and contingency paid employees. While rejecting the representation of Bhagwan Das Manikpur (petitioner in W.P. No.3221 of 2006), the State Authorities have not examined the aspect of grant of pay revision. 12, Any circular granting revised pay scale w.e.f. subsequent date would be contrary fo the provisions of the Rules, 1 998, as the Rules, 1998 clearly provides for grant of revised pay scale w.e.f. 1-1-1996. 13. It is well settled principles of law that executive instructions/ circulars cannot supplant the provisions of Rules, Acts, but supplement to fulfill the objective of the said Rules, Acts. (See A. Lall (Smt.) v. State of Chhattisgarh and Others ). 14. Having regard to the facts situation of the case, the respondent authorities are directed to consider the individual cases of the petitioners for grant of benefit of fifty pay scale, as their order of appointment clearly provides that they were appointed as workcharged contingency paid employees, if they were continuing on 1-1-1996 and thereafter. The State authorities have not produced any document to indicate the difference between temporary and permanent contingency paid employees. Even otherwise, for want of sufficient materials it cannot be held that the petitioners are workcharged and contingency paid employees only on the basis of appointment orders, as initially they were appointed for a period of 89 days. 2007 01BLJ 265 11 15. 16. /ll.\o The State Government shall consider appointing a committee to examine the individual cases of the petitioners on facts in the light of decision of this Court rendered in Govind (supra) and if they are found that they are workcharged and cbntingency paid employees, they are entitled to revised pay scale in accordance with the Rules, 1998. With the aforesaid observations and directions, the writ petitions stand disposed of. A copy of this order be placed on the records of W.P.Nos.3221, 3277, 3398, 3611, 6125, 6126, 6127, 6128, 6129, 6130, 6131, 6426, 6427 & 6428 of 2006 and W.P.(S) Nos.2959, 2960, 2961 & 2975 of 2007. Gowri Sd/- Satish K. Agnihotri Judge