Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001 Bench: S. Rajendra Babu, S.N. Variava CASE NO.: Appeal (civil) 636 of 1998 PETITIONER: DWARIKA PRASAD TIWARI Vs. RESPONDENT: M.P. STATE ROAD TRANSPORT CORPORATION & ANR. DATE OF JUDGMENT: 13/09/2001 BENCH: S. RAJENDRA BABU & S.N. VARIAVA JUDGMENT: [WITH CIVIL APPEAL NOS. 2372-2373/1999 AND 2375-2378/1999] J U D G M E N T RAJENDRA BABU, J. : The appellants before us are workmen on the establishment of the M.P. State Road Transport Corporation. In these appeals the workmen had approached the labour court for classification as Booking Agents and for payment of wages for different periods for which they had worked as such on the establishment of the first respondent. The appellant in Civil Appeal No. 636 of 1998 sought to be classified as Traffic Supervisor- II on the ground that though he was holding the post of Booking Agent but was directed to discharge the duties of Sub-Depot Incharge which is equivalent to the post of Traffic Supervisor-II. The appellants in the other appeals also claimed a similar benefit. The labour court allowed the claim of the appellant. Writ petitions were preferred against the same. The learned Single Judge, following the decision of the Madhya Pradesh High Court in Madhya Pradesh State Road Transport Corporation vs. Narain Singh Rathore & Ors., 1994 MPLJ 959, allowed the writ petitions and set aside the orders made by the labour court. Letters Patent Appeals were preferred against the order made by the learned Single Judge in each of these cases either by a common or by a separate order quashing the order made by the labour court. Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001  1 In this Court the principal contention urged on behalf of the appellants is that the writ appeal was maintainable on the Letters Patent side. This Court in Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, 1999 (6) SCC 275, has explained the legal position in this respect after adverting to the decisions of this Court in Umaji Keshao Meshram vs. Radhikabai, 1986 Supp. SCC 401; Ratnagiri District Central Co-operative Bank Ltd. vs. Dinkar Kashinath Watve & Ors., 1993 Supp (1) SCC 9; and Sushilabai Laxminarayan Mudliyar & Ors. vs. Nihalchand Waghajibhai Shaha & Ors., 1993 Supp (1) SCC 11. Therefore, it is no longer necessary for us to set out the law on the matter nor is it necessary to remand the case after setting aside the order made in the writ appeal to examine the case in the light of the decision of this Court. However, we propose to consider these matters on merits as is done by the learned Single Judge. The learned Single Judge followed the decision of the Full Bench in Narain Singh Rathore (supra) and, therefore, what is necessary to be considered in these cases is the correctness of the view expressed by the Full Bench therein. The Full Bench held that under the Madhra Pradesh Industrial Employment (Standing Order) Rules, 1963, clause 2(i) and (vi) of the Annexure to the said Rules pertains only to classification of employee which relates to classification at entry stage, that is, on the stage at which person enters employment and not to promotion stage. Employee posted temporarily on higher promotional post cannot claim status of permanent employee in the said post under clause 2 on the plea that what he is seeking is classification and not promotion. This decision accepted the correctness of the decision in K.K. Krishnan vs. Industrial Court of M.P., Indore, 1992 MLJP 570. After adverting to the decision in K.K. Krishnan's case in detail, this is what the Full Bench of the High Court in Narain Singh Rathore (supra) stated : "Clause 2 of the Standing Orders in the Annexure to the rules deals with classification of employees. This is in relation to item No. (1) of the Schedule to the Act. It says that the employees should be classified into six categories, i.e., permanent, permanent seasonal employee, probationer, Badli, apprentice, temporary employee. It defines each of these six categories. 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. Temporary employee has been defined as 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 temporary increase of the work of permanent nature. Where he is required to work continuously for six months, he shall be deemed to be a permanent Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001  2 employee. The definitions have to be construed in the light of the fact that it is part of the effort directed at classification of employees. Definition of permanent employee refers to an employee employed in a clear vacancy while the definition of temporary employee does not prefer to clear vacancy. Clause (3) deals with 'ticket' and allied matters. Employees other than those belonging to clerical, supervisory or technical personnel shall be provided tickets which will bear the name of the Department, date of entry in service, his number, the record of daily attendance etc. Badli employee shall be provided Badli Card. Temporary employee shall be provided temporary card. Apprentice shall be provided with apprentice card." [pp. 967, 968] "All the decisions of this Court referred to earlier are unanimous in regard to one aspect, namely, what is dealt with in clause (2) of the Annexure to the Rules is classification and not promotion. An employee can claim classification but not promotion by virtue of this clause. A probationer may be confirmed, a Badli may be absorbed and an apprentice may be regularly employed. He may become permanent employee. Once an employee becomes eligible or entitled for status as permanent employee he is entitled to the consequential classification. When the employee acquires the status of a permanent employee, so far as he is concerned, Clause (2) of Annexure to the rules would have worked itself out. There is no question of such permanent employee acquiring permanent status again under clause (2). Once he acquires the status of permanent employee, he is protected to the extent contemplated by law and the regulations or rules relating to service conditions. If the conditions of service provide for a channel of promotion, he is entitled to look forward to be considered for such promotion and if he is denied promotion, it may be open to him to ventilate his grievance in an appropriate forum. In other words, the classification contemplated in Item-I of Schedule to the Act and Clause (2) of the Annexure to the Rule is classification at a stage which could be spelled out from the classification contemplated namely, permanent, permanent seasonal, probationer, Badli, Apprentice and temporary. The stage is only the entry stage, i.e., the stage at which the person enters employment. The classification cannot relate to the stage of promotion or the promotion post which can be governed only by the service conditions applicable to the employees. Rules or Regulations framed by the Corporation providing for channel or promotion do not in any way detract from the Standing Orders and Clause (2) of the Annexure to the rules does not detract in any way from the scheme of promotion provided by the rules or regulations. To say that an employee who was asked to work on a higher post for a period on account of exigencies of situation is not asking for promotion and he is asking only for appropriate classification on the post on which he is working is to ignore both the scheme underlying the rules relating to classification and the promotion rules. An employee may be asked to work in a higher post for some time on account of administrative exigencies. He does not thereby acquire a right to the higher post, as long as he has not been promoted by the Competent Authority in accordance with the regulations or rules and on a consideration of all employees in the feeder categories who are in the field of choice. An employee who is not entitled to be considered for promotion or who is yet to be considered for promotion and therefore, cannot be deemed to have been promoted, cannot secure the same end by stating that what he is seeking is classification and not promotion. What cannot be achieved directly cannot be permitted to be achieved in an indirect manner. It is one thing to say that an employee Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001  3 who has been asked to work in a higher post temporarily must get the emoluments attached to the higher post; it is quite a different thing to say that he must be regarded as a permanent incumbent of the higher post by being classified as such. The question of exploitation and unfair labour practice does not arise since it will be the duty of the employer to pay him the emoluments attached to the higher post as long as he discharges the duties attached to the higher post and on the failure of the employer, it will be open to the employee to enforce his claim. In a large organisation like the Corporation with offices and bus-stations spread over the vast expanse of the State, it may not always be possible, though it may be desirable, for the competent authority to keep a watchful vigil and take prompt action for filing up the promotional post on occurring of the vacancy. Officers in far off places may have to make temporary arrangements for discharge of the duties attached to the higher posts which fall vacant. They can only entrust the duties to an employee available locally who may not have the requisite seniority or even the eligibility for being considered for promotion. It is not in the scheme of clause (2) of the Annexure to the rules to convert such temporary arrangement into a permanent one. The scheme of classification spells out clearly the underlying intention that it is intended to apply to the entry stage and not to promotional post." [ pp. 968, 969] Under the relevant Standing Orders employees have been classified as permanent, permanent seasonal, probationer, Badlis, apprentices and temporary. A permanent employee has been defined to be an employee who has completed six months satisfactory service in a clear vacancy. Standing Order, therefore, relates to employment as such and not to category of posts in which a person is employed. There is a clear distinction between the nature of employment and the hierarchy of the post in which the person is employed. The relevant Standing Order categorises the nature of employment and it does not classify the individual employees in different posts according to the hierarchy created in a department. Thus, the employees have been classified according to the nature of their employment as permanent, permanent seasonal, probationer, Badlis, apprentices and temporary. Proviso to Standing Order does not apply to promotions or regularisations in higher posts. It applies only to temporary employees as defined in Standard Standing Order and on fulfilling the requirement of the proviso such employees get the status of a permanent employee. If the proviso is applied to promotions, it will affect the future of several other employees because promotions are dependant upon conditions of service laid down for uniform application. If the permanent status is granted to officiating employees without applying the conditions of service only on the basis that such employees were required to work for six months or over in officiating capacity which is only a stop gap arrangement made without following the due procedure for promotions, such a conclusion would be wholly unfair and would allow those who were in a fortuitous circumstance of being available at a station or depot to be put in charge of a higher post without considering the claims of other eligible employees. Hence, if any other conclusion is reached, it would lead to disastrous consequences. Therefore, the line of reasoning adopted by the High Court is perfectly in order. However, Dr. T.N. Singh, learned Senior Advocate appearing for the appellants, dew our attention to the decision of the High Court in V.K. Jain & Anr. vs. Kamal Singh Thausingh & Anr., 1978 MPLJ 664. In that case the workman concerned was working as Supervisor for nearly 14 years but the Management had not given him either the post or pay of Supervisor. Therefore, the workman approached the labour court for directing the employer to classify him as Supervisor and grant him pay accordingly. It was contended on behalf of the Management that the workman was claiming Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001  4 promotion and, therefore, the labour court had no jurisdiction, the function being within the jurisdiction of the Management. It was held in that case that what the workman was asking for was not promotion but for appropriate classification under Rule 2 of the Standing Orders and that case was covered by Item Nos. (i) and (vi), Schedule II of the M.P. Industrial Employment (Standing Orders) Rules and the labour court had jurisdiction. In that case, there was no detailed consideration of the nature of the Standing Order 2 as has been done as closely as in K.K. Krishnan's case (supra) and Narain Singh Rathore's case (supra) wherein the entire scheme of the provision was considered. We have applied our mind to relevant provisions and the view of the High Court and we have also analysed the provisions vis-€-vis the arguments of the learned counsel for the appellants. We think, the view expressed by the High Court in this respect appears to be correct and calls for no interference as on all aspects on which the learned counsel for the appellants argued are covered by the passages quoted by us above. We think that the basis upon which the conclusions have been reached is sound. We further make it clear that for the periods for which the appellants had discharged their duties or are discharging their duties attached to the higher post, they should be paid emoluments as attached to that higher post. Subject to what is stated above, these appeals deserve to be and are dismissed. No costs. ..........................................J. [ S. RAJENDRA BABU ] ..........................................J. [ S.N. VARIAVA ] SEPTEMBER 13, 2001. Dwarika Prasad Tiwari vs M.P. State Road Transport Corporation & ... on 13 September, 2001  5