Case BriefsHigh Courts

Madhya Pradesh High Court: Vandana Kasrekar, J., allowed a writ petition and extended the benefit of 5th pay scale to the petitioner.

The facts of the case are that the petitioner was initially appointed on the post of Chowkidar on 01-01-1993 in the Department. His services were terminated along with other daily wage employees w.e.f. 28-03-2000, but thereafter, he was taken back in service in the year 2004 and since then, the petitioner is working on the post of Driver.

The petitioner has stated that he has completed more than 29 years of services and is qualified for appointment on the post of Driver. He further stated that respondents have granted the benefit of 5th & 6th pay-scale from the date of its application i.e. 01-01-1996 to the similarly situated persons, however, the same benefit has not been granted to the petitioner. The petitioner, therefore, filed a Writ Petition No. 463/2016 before this Court and the said writ petition was disposed of vide order dated 18-01-2016 directing the respondent/s to pay the 5th and 6th pay scale in light of the case of Kishorilal Prajapati v. State of M.P. (WP No. 5332/2010(s) passed on 03-07-2012). In pursuance to the orders issued by this Court, the matter was sent to Council of Ministers along with other cases for grant of a minimum of pay-scale along with arrears in 5th & 6th Pay-scale to the employees of the NVDA. The Council of Ministers in its meeting had approved the grant of minimum pay-scale along with its arrears. Accordingly, the order dated 18/10/2016 was issued by the respondents/department, thereby extending the said benefit to the petitioner and other employees, however, thereafter, the Executive Engineer has issued the order dated 27/10/2016, thereby extending the benefit of only 6th pay-scale to the petitioner w.e.f. 01-01-2016, but has not granted the benefit of 5th pay scale.

In view of the above, the Court allowed the writ petition, stating that the petitioner is also similarly situated employee, therefore, the respondents are duty-bound to comply with the order passed by this Court in favour of the petitioner also and directed to extend the benefit of 5th pay-scale to the petitioner from the date of its applicability i.e. 01-01-1996 along with all arrears, within a period of four months.[Dilip v. State of M.P., 2019 SCC OnLine MP 2370, decided on 30-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sindhu, JJ. dismissed the writ petition on the ground being devoid of merit and in light of the set principle of law. 

The brief facts of the case were that the respondents were appointed as Assistant Research officers in the office of Director Welfare of Scheduled Castes and Backward Classes Department Haryana. The pay scale was fixed which was admissible at that time in ESA department to Assistant Research Officer. The representation was made by assistant research officer of ESA department which was accepted and thus the payment was revised. The respondents also made representation seeking parity of pay scales of the Assistant Research Officer serving in ESA Department. The representation was rejected by the competent authority. 

After submission of the facts, it was found that the state has maintained the parity of pay scale of Assistant Research Officer working in the office of Director, Welfare of Scheduled Castes and Backward Classes Department Haryana. The parity was disturbed only when the representation made by the Assistant Research Officer of ESA Department was allowed.

The counter filed by the appellant to the writ petition submitted that the quality and quantity of work of the Assistant Research Officer is substantially different in both the departments.

The court thus opined that it is settled law that it is not open to discriminate between the incumbents of the two posts for the grant of pay scale at the time of subsequent revision of pay scales once the State Government had already decided to equate the pay scale of a certain post. Thus the appeal was dismissed. [State of Haryana v. Mange Ram, 2019 SCC OnLine P&H 1411, decided on 31-07-2019]

Case BriefsHigh Courts

Karnataka High Court: P.B. Bajanthri J., dismissed the petition for regularisation of the service on the ground that statutory rule recognizing such right was not in their favor.

A petition was made to quash the endorsement issued to the petitioner and to seek respondent to regularize their services in the post of accounting consultant from their initial date of appointment and to extend the pay scale.

The facts of the case were that deputy commissioner recruited accounting consultant in the respective municipalities/corporation. The petitioner was appointed as Accounting Consultants but in a subsequent document, he was quoted as Accountant Consultants. The government notified the appointment of Accounting Consultant for one year and it was extendable to one more year to respective post in the local body. The petitioner was appointed for the said post in the year 2007 but in the year 2011 vide notification the post of accounting consultant was incorporated and method of recruitment was made 75% direct and 25% by promotion. A notification regarding enhancement of consolidation of payment was made, the petitioners made representation seeking regularization of their service, the only action for continuing of their service was made up to the year 2016. Among various notification, the notification relating to outsourcing of Accounting Consultant was made, but against which petitioner approached the court, the said petition was disposed of with a direction that petitioners would be given liberty of hearing by the concerned respondent before taking further action. The respondent pursuant to disposal of a writ issued the notices to all the petitioner informing them to be present in the office, but the same was rejected by the respondent. Thus the petition was made regarding the endorsement and regularization of their services in the cadre of an accountant.

M.S. Bhagwat, counsel for the petitioner contended that Petitioners initial appointments was in accordance with law even though it was on a contract basis. State Government issued absorption of the employees appointed under the scheme of Swarnajayanti Shahari Rozgaar Yojana in Urban Local Bodies under Rules, 2005. Petitioners are also similarly situated persons who were also entitled to regularization/absorption in the posts of Accounting Consultants in the respective Municipalities. Petitioners’ contract appointment was for a period of one year or till selection and appointment was done through KPSC and for any reason permanency would not be made. Pursuant to the selection posts, KPSC had forwarded the list of selected Accountant and it was under process. Therefore, the question of regularization of petitioners’ services was impermissible. Thus the petitioner’s grievances were rejected. It was submitted that the petitioner post was made after holding the due procedure except nature and appointment was contractual.

Sridhar N. Hegde, K.V. Narasimhan, Reuben Jacob, G. Gachinamath, counsels for the respondent supported the endorsement issued by the second respondent and contended that petitioners were not entitled to regularization. Since they were not appointed as Accountant but were appointed as Accounting Consultants. Petitioner’s nature of appointment was required to be taken into consideration for the purpose of regularization. Petitioners have failed to question the validity of the Clauses imposed in the order of appointment that their appointment was contractual and purely on a temporary basis at any rate appointment would not be made permanent.

The High Court thus opined that employment signifies fresh appointment to fill vacancies whereas the regularization in accordance with service regulation or in accordance with the statutory law. It was further said that Contractual appointment was for a specified period and not entitled to regularization. Grant of extension of tenure does not confer on status of the employee nor can he/she seek regularization of his/her services in absence of any statutory Rule recognizing such right in his/her favor. The right to regularization of a person on a purely contractual basis would depend on express or implied terms of the contract appointment. The Court through the judgment also communicated that State should avoid contract appointment for longer period. Further, resort for regular recruitment to each of the public post in accordance with the Rules of recruitment governing the post and to comply with the Constitutional provisions read with Constitution Bench decision in the case of State Of Karnataka v. Umadevi. [Preethi Bhandage v.  State of Karnataka, 2019 SCC OnLine Kar 685, decided on 28-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had approached the Court before a bench of Sheel Nagu, J. under Article 226 of the Constitution praying for a direction to the respondents to pay the salary as per pay scale of the post of Mession Helper to the petitioner.

Petitioner was a Mession Helper who was classified as a permanent employee under the M.P. Industrial Employment (Standing Order) Act, 1961. Despite being a permanent employee, petitioner was not given the benefit of the regular pay scale. Further, he referred a case of Ram Naresh Rawat v. Sri Ashwani Ray, (2017) 3 SCC 436 where it was observed that though a ‘permanent employee’ has right to receive pay in the graded pay-scale but only minimum of the said pay-scale with no increments. It is only the regularization in service which would entail grant of increments etc. in the pay-scale.

High Court was of the view that as per the case referred petitioner was entitled to a minimum of the regular pay-scale without increments. Court directed respondents to consider the case of the petitioner in terms of the case referred and grant benefit if not granted already. [Raghuvanshi v. State of M.P., 2019 SCC OnLine MP 210, dated 28-01-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.M. Sapre and Indu Malhotra, JJ. disposed of an appeal seeking enhanced severance package wherein the order passed by Delhi High Court was modified.

The appellant worked as Senior Confidential Secretary to Senior Manager (North India) of HSBC Bank. In May 2005, the post became redundant as the said officer left the services of the Bank. Pursuant thereto, the appellant was offered four alternative jobs in the same pay scale. The appellant admitted that she declined to accept any of these jobs. Consequently, the Bank issued a letter terminating her services. In lieu thereof, a compensation amount of Rs 8,17,071 was paid to her. The appellant raised an industrial dispute under the Industrial Disputes Act, 1947 seeking enhancement of severance package. This was opposed by the Bank. The litigation continued and it was an admitted fact that the appellant had received a total amount of Rs 1,07,73,736 under various heads. During the course of litigation, the Delhi High Court had held that she had abandoned her job and therefore the amount she had received was 13 times her legal entitlement. She was directed to return the amount received in excess of Rs 8,17,071 minus litigation expenses and amount received under Section 17-B of ID Act. Aggrieved thereby, the appellant preferred the instant appeal.

The Supreme Court perused the record and was of the view that the Bank was justified in terminating services of the appellant. Referring to Vijay S. Sathaye v. Indian Airlines Ltd., (2013) 10 SCC 253, the Court held that intention of the appellant could be inferred from her refusal to accept any of the four alternative positions offered to her. Also, the claims raised by her were only for enhancement of compensation and not for re-instatement in service. The Court held that this conduct constituted a voluntary abandonment of service, therefore she could not have been in “continuous service” as defined under Section 2(oo) of ID Act and hence, Section 25 of ID Act cease to apply on her. On facts of the case, it was held that the amount already received by the appellant may be treated as the final settlement of all her claims. The appeal was accordingly disposed of. [Manju Saxena v. Union of India,2018 SCC OnLine SC 2659, decided on 03-12-2018]

Case BriefsSupreme Court

Supreme Court: In the case where the validity of the Rules made in respect of the 6th Pay Commission by State of Maharashtra in the year 2009 was in question which dealt with the pay structure of the non-teaching employees of the educational institutions but exclude the non-teaching employees of the unaided non –government colleges, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ said that the objects sought to be achieved by the periodic revision of the pay-scales is obviously to comply with the constitutional mandate emanating from Article 43 of the Constitution of India and hence, there is no rationale behind the classification made by the State of the Maharashtra between aided and unaided colleges.

The Court said that the people employed in educational institutions run by non-State actors are not treated any kindlier by the market forces and the economy than the people employed either by the Government or its instrumentalities or institutions administered by non-State actors receiving the economic support of the State. The very fact that the Government of India thought it fit to revise the pay scales of its employees and also thought it fit to accept the suggestions of the UGC to revise the pay scales of various Universities and other bodies whose maintenance expenditure is met by the UGC (in other words virtually by completely convinced that there is a definite need to revise the pay scales of not only its employees, but also the employees of its instrumentalities. The Constitution of India bestows considerable attention to the field of education. It recognizes the need for regulating the various facets of activity of education and also the need for not only establishing and administering educational institutions but also providing financial support for the educational institutions run by private/non-state actors.

Regarding the question as to whether a constitutional court could compel the executive to exercise its statutory authority to make subordinate legislation in a manner which would be consistent with the command of Article 14 and other provisions of the Constitution, the Court said that if a law (whether primary or subordinate legislation) is found to be untenable on the touchstone of Article 14 by the constitutional court, one clear option for a constitutional court is that it can declare such law to be unconstitutional and strike down the law. But, striking down a law, which confers some benefit on a class of people ignoring others who are otherwise similarly situated in our opinion is not to be done as a matter of course. If the benefit sought to be conferred by such a law is not repugnant to the directive principles of the State policy, striking down the same would virtually amount to throwing away the baby with bath water. [Secretary Mahatama Gandhi Mission v. Bhartiya Kamgar Sena, 2017 SCC OnLine SC 22, decided on 05.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter where the rights of the posters working for the Indian Army were I n question, the Court said that the porters provide valuable support to the Indian Army and are an integral, if not indispensable, requirement of operations in border areas i.e. the high risk/highly active field areas and hence, they should be paid wages at par at the lowest pay-scale applicable to multi-tasking staff.

Taking note of the fact that the porters are civilians who possess an innate knowledge of the terrain and its hazards who are engaged for the carriage of stores, stocking of posts, collection of water, replenishment of ammunition, clearance of tracks and evacuation of casualties, the Court said that the porters belong to the poorest strata of society but they work, albeit as casual labour, for long years with little regard of safety. Faced with disability, injury and many times death, their families have virtually no social security. Such a situation cannot be contemplated having regard to the mandate in Articles 14 and 16 of the Constitution.

Considering the fact that a scheme has already been finalized by the Ministry of Defence in consultation with the Indian Army for the engagement of “seasonal civilian labour in high risk/highly active field areas”, the Court gave the below mentioned directions to be kept in mind while finalizing the scheme:

  • The aspect of payment of minimum wages at the prevailing ‘Nerrik Rates’ as provided in the scheme requires a fresh look. Further, if there are provisions enabling additional payments to be made (either by way of allowances or otherwise) for work in high altitude areas or in high risk/active field areas, such payments shall be allowed under the scheme.
  • The scheme must provide for regular medical facilities including in the case of injury or disability.
  • The amount of compensation in the case of death or permanent disability should also be looked at afresh and suitably enhanced. The present scheme provides for an interim relief of Rs. 20, 000 to be sanctioned at the discretion of the local formation commander. A maximum payment of Rupees two lakhs as applicable under the Workmen’s Compensation Act, 1923 is contemplated. The provision for compensation shall be enhanced to provide for dignified payments in the event of death or disability.
  • A onetime severance grant of Rs. 50, 000 is provided in the proposed scheme subject to a minimum service of ten years. This measly payment on severance does not fulfil the mandate of fairness, on the part of the State. Hence, the terminal benefits should be enhanced so as to provide for compensation not less than at a rate computed at 15 days’ salary for every completed year of service.

The bench of T.S. Thakur and Dr. D.Y. Chandrachud, JJ asked the Union Government to finalise the scheme within 3 months. [Yash Pal v. Union of India, 2017 SCC OnLine SC 8, decided on 02.01.2017]