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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION (CIVIL) NO. 771 OF 2015 IN

SPECIAL LEAVE PETITION (C) NO. 25284 OF 2012

RAM NARESH RAWAT .....PETITIONER(S)

VERSUS

SRI ASHWINI RAY & ORS. .....RESPONDENT(S)

W I T H

CONTEMPT PETITION (CIVIL) NO. 838 OF 2015 IN

SPECIAL LEAVE PETITION (C) NO. 9635 OF 2013

CONTEMPT PETITION (CIVIL) NO. 858 OF 2015 IN

SPECIAL LEAVE PETITION (C) NO. 23985 OF 2012

CONTEMPT PETITION (CIVIL) NO. 62 OF 2016 IN

SPECIAL LEAVE PETITION (C) NO. 31343 OF 2011

CONTEMPT PETITION (CIVIL) NOS. 82-85 OF 2016 IN

SPECIAL LEAVE PETITION (C) NOS. 18245 OF 2014, 18246, 18247 & 18249 OF 2014

CONMT.PET.(C) NO. 101/2016 IN  SLP(C) NO. 19220/2014   

CONMT.PET.(C) NO. 787/2015 IN  SLP(C) NO. 19224/2014  

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CONMT.PET.(C) NO. 788/2015 IN  SLP(C) NO. 19286/2014

CONMT.PET.(C) NO. 819/2015 IN  SLP(C) NO. 19217/2014

CONMT.PET.(C) NO. 823/2015 IN  SLP(C) NO. 19218/2014

CONMT.PET.(C) NO. 856/2015 IN  SLP(C) NO. 19230/2014

CONMT.PET.(C) NO. 121-131/2016 IN SLP(C) NO. 8473/2012, 19394/2012, 23980/2012,23981/2012, 23986/2012, 34868/2012, 38228/2012, 38231/2012,

38235/2012, 38236/2012, 19236/2014.

CONMT.PET.(C) NO. 735/2015 IN  SLP(C) NO. 19278/2014

CONMT.PET.(C) NO. 793-817/2015 IN SLP(C) NO.20025/2011 AND 19396/12, SLP(C) NO. 30275/2012, SLP(C) NO. 30276/2012, SLP(C) NO. 1577/2013, SLP(C) NO. 5597/2013, SLP(C) NO. 29683/2013, SLP(C) NO.

19095/2014, SLP(C) NO. 19282/2014, SLP(C) NO. 19251/2014, SLP(C) NO. 25279/2012, SLP(C) NO. 12438/2013, SLP(C) NO. 12433/2013, SLP(C) NO. 5350/2013, SLP(C) NO. 19221/2014, SLP(C) NO. 19260/2014, SLP(C) NO. 19257/2014, SLP(C) NO. 19206/2014, SLP(C) NO.25277/2012, SLP(C) NO. 19094/2014, SLP(C) NO. 19205/2014, SLP(C) NO. 19219/2014, SLP(C) NO.

19237/2014, SLP(C) NO. 19246/2014 AND SLP(C) NO. 19255/2014   

CONMT.PET.(C) NO. 215/2016 IN  SLP(C) NO. 21830/2012   WITH   

CONMT.PET.(C) NO. 216/2016 IN  SLP(C) NO. 21835/2012  

CONMT.PET.(C) NO. 512/2016 IN  SLP(C) NO. 18413/2014

CONMT.PET.(C) NO. 475/2016 IN  SLP(C) NO. 8203/2012

CONMT.PET.(C) NO. 536/2016 IN  SLP(C) NO. 19393/2012

A N D

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CONMT. PET. (C) NO. 106/2016 IN SLP(C) NO. 19292/2012

J U D G M E N T A.K. SIKRI, J.

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 by the State, which inaction of the State Government

provoked some of  these employees to raise the industrial  dispute for

their  classification  which  resulted  into  award(s)  of  the  labour  court

directing their classification as 'permanent'.  The labour court also held

that on their classification as permanent, they would be entitled to the

pay-scale of permanent post from dates specified in the award.  Appeals

were filed by the State against those orders which were dismissed by the

industrial court and writ petitions also came to be dismissed by the High

Court.   This  resulted  in  passing  of  the  orders  by  the  concerned

authorities  in  the  State  Government  classifying  these  petitioners  as

permanent employees.  It was also ordered that they shall be entitled to

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minimum pay as fixed by the Labour Commission.  This led to another

round of litigation as the petitioners claimed that on their classification as

'permanent'  to their  respective posts they were entitled to receive the

pay-scale attached to the said posts.  These reliefs were granted to them

by the labour court against which appeal preferred before the industrial

court and the writ petition before the High Court were also dismissed. In

all these cases, thereafter, special leave petitions were filed which were

dismissed by this Court by common order dated 21st January, 2015.  This

order reads as under:

“Delay condoned.

Dismissed.

We direct the State Government to implement the order(s) passed by the High Court within eight months' time from today.

If for any reason, the petitioner-State does not implement the order(s)  passed by the High Court,  the respondents are  at  liberty  to  approach  this  Court  by  way  of  filing contempt petition(s).”

2) The State Government has passed the orders fixing the pay of these

petitioners  at  the  minimum  of  the  regular  pay-scale  attached  to  the

respective posts.  To demonstrate, by way of example, in the case of

Ram Naresh Rawat, who was engaged as a daily wager, the pay is fixed

at Rs. 15330/- in the pay-scale of Rs. 5200/- attached to the said post.

Break up of the aforesaid salary fixing is as under:

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Sl. No.

Particulars Amount (Rs.)

2(i) Minimum  in  the  Regular pay  scale  granted  vide order  dated  11.03.2016 (per month)

5200/-

2(ii) Grade pay (per month) 1800/-

2(iii) D.A. (per month) 8330/- 2(iv) Total  salary  and  other

benefits  in  hand  (i+ii+iii) per 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

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similar  directions,  which  are  followed  in  their  cases,  the  State

Government has not only fixed pay in the regular pay-scale but has also

been granting increments etc. as well.   

4) The case  set  up  by  the respondents,  on  the other  hand,  is  that  the

petitioners are daily wage employees.  They have not been 'regularised'

in  their  respective  posts  for  want  of  adequate  number  of  regular

vacancies.  They are granted 'permanency' in terms of standing orders

which,  at  the  most,  entitles  them  to  get  the  pay  which  is  given  to

employees appointed on regular basis but such an entitlement is to the

minimum of the said pay-scale.  It is also argued that even the direction

of the High Court was to grant pay in the regular pay-scale with effect

from the date of classification orders and there is no direction given by

the High Court to give them increments etc.  which is admissible only

when a  person  is  appointed  on  regular  basis  or  whose services  are

regularised, which has not happened in the case of the petitioners.

5) Learned counsel  who appeared for  these petitioners  have drawn our

attention to the relevant provisions of the standing orders on the basis of

which they were classified as permanent.   It  is  standing order  No.  2

which deals with classification of the employees and reads as under:

“2. Classification of Employees.—  Employees shall be classified as (i) permanent, (ii) permanent seasonal, (iii) probationers,  (iv)  Badlies,  (v)  apprentices,  and  (vi) temporary:

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(i) 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;

(ii) A 'permanent seasonal employee' is one who has completed  service  for  a  period  equal  to  2/3rd  of  the duration or a season or three months whichever is less in a clear vacancy and shall be deemed to be a permanent employee for the purpose of these order;

(iii) A  'probationer'  means  an  employee  who  is provisionally employed to fill a clear vacancy, and who has not  completed  six  months'  satisfactory  service  in  the aggregate;

(iv) A  'badli',  employee  means  an  employee  who  is employed on the post of a permanent seasonal employee, or a probationer or a permanent seasonal employee who is temporarily absent.

(v) An 'apprentice' means a learner, provided that no employee  shall  be  classified  as  an  apprentice  if  he  ha shad 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.

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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.  Our attention was drawn to one such order dated 8 th May,

2008 passed by the High Court in Writ Petition No. 1306 of 2008 where

this issue is specifically dealt with in detail and decided in favour of the

petitioners, after taking note of various judgments.  It was further pointed

out that in some other cases, increments are also given while fixing pay

in  the  regular  pay-scale.   Example  of  one  such  case  given  by  the

petitioner is  State of Madhya Pradesh & Ors.  Vs. Bhasker Sharma1

wherein the Writ Appeal was also dismissed.  It was submitted that after

the  dismissal  of  the  appeal,  Bhasker  Sharma was  not  only  granted

regular pay-scale but is getting increments and other benefits attached

to the said post as well.  It was also argued that many such employees

have been given similar  benefits and the State Government has now

taken  a  'U'  turn  and  is  not  willing  to  extend  such  benefits  to  the

petitioners  herein.   Copies of  many such orders passed by the High

Court are filed by the petitioners as additional documents in support of

their submissions.

8) Mr. Mukul Rohatgi, learned Attorney General, who appeared on behalf of

1 Writ Appeal No. 322/2009; Order dated 30.11.2009; By High Court of M.P., Gwalior Bench

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the State Government and the Contemnors emphasised that the only

direction of the High Court, which has been upheld by this Court, is that

these petitioners are entitled to pay in a regular scale.  It is argued that

they  have  been  classified  as  “permanent”  because  of  the  aforesaid

standing  orders  which  means  that  their  services  would  not  be

terminated.   However,  that  does  not  mean  that  the  petitioners  are

regularised against any posts.  It  was also argued that each of these

petitioners  have  been given  substantial  amount  as  arrears  of  pay  in

terms of the orders passed by the High Court and there is significant

enhancement  in  the  monthly  emoluments  now  drawn  by  these

petitioners.   The learned Attorney General further submitted that there

are 520 such employees who have gained entry into the service through

backdoor as they were not appointed on regular basis against regular

vacancy after following required selection procedure.  Such employees,

like the petitioners, cannot seek regularisation and benefits emanating

from such regularisation in view of the law laid down by the Constitution

Bench of this Court in State of Karnataka Vs. Uma Devi2.   It 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

2 (2006) 4 SCC 1

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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 Rs. 5000-100-8000.

(III) They will be given the benefit of seniority and their actual pay on September 1, 2016 in their pay scale will be determined based on the years of service put in by them.

(IV) They will be entitled to Dearness Allows. (Presently at 125%)

(V) The pay fixation in the pay scale will be applicable from 1.9.2016.  Next increment in salary will be given in September 2017.

(VI) On attaining the age of superannuation, they will be entitled  to  Gratuity  based  on  15  days  salary  per  year during the period of service.  Maximum limit of this amount will  be  Rs.  1,25,000/-  for  unskilled,  Rs.  1,50,000/-  for semi-skilled, and Rs. 1,75,000/- for skilled workers.

(VII) Such daily wager employees who were working on 16.5.2007, and have also been in service as on 1.9.2016

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will be entitled to the pay scale mentioned above and other benefits.

6. In  view  of  the  aforesaid  scheme,  the  MP  Daily Wages  Employee  (Conditions  of  Service),  Rules,  2013 now stands repealed.

7. The scheme also prescribes the steps to be taken for filling up the vacant Regular posts.  For this purpose the vacant Class IV posts available in the regular setup under various departments at  the district  level  would be filled up on priority from the existing sthayee karmis.  The workers  working  with  various  Construction  Departments (Nirman Vibhag)   will be treated as Industrial Workers for the purposes of Standing Order Act, 1961 and Rules, 1963 and  the  permanent  classified  employees  of  such Departments  are  also  entitled  to  be  regularised accordingly.

8. In  view of  the  aforesaid,  it  is  submitted  that  the daily  wage employees are also entitled to the aforesaid benefits at the time of superannuation as mentioned in the Scheme.”

He, thus, submitted that if the petitioners opt for the said scheme, they

would get the benefits thereof after their retirement.

10) Before we consider the respective submissions, we want to make two

observations which are crucial to the issue involved.  These are:

(i) The matter is being examined in the contempt jurisdiction of this

Court.   From the  chronology  of  events  given,  it  would  be  clear  that

initially these petitioners had claimed their classification as 'permanent'

to the respective posts.  They succeeded in this attempt and the orders

passed  therein  in  their  favour  was  that  they  would  be  classified  as

'permanent'  and  that  they  would  also  be  entitled  to  pay-scale  of

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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 that the petitioners have been given pay in the

regular  pay-scale.   Petitioners,  however,  have  joined  issue  by

contending  that  orders  dated  11th March,  2016  do  not  carry  out  the

complete compliance of the directions given by the High court that on

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fixation of pay in the regular pay-scale the petitioners are also entitled to

increments of salary, as is given to the regular employees, on annual

basis.

Therefore, the question that arise for consideration is as to whether the

petitioners are also entitled to the increments.

12) It  is not in dispute that the petitioners were initially engaged on daily

wage basis.   Their  engagement  was also done without  following any

selection procedure. It also does not emerge from record that the initial

engagement  of  these  petitioners  was  against  regular  vacancies.

Normally, in such a situation even if these persons, because of their long

service and also on the assumption that they are discharging the same

duties as discharged by regular employees, such employees can claim

the salary which is being paid to regular employees holding similar posts

on  the  principles  of  'equal  pay  for  equal  work'.   This  aspect  has

exhaustively and authoritatively being dealt with by this Court in a recent

judgment dated 26th October, 2016 in Civil Appeal No. 213 of 2013, titled

State  of  Punjab  and  Ors. vs.  Jagjit  Singh  and  Ors.3 and  other

connected appeals,  though,  there is  one distinguished factor, viz.  the

petitioners  herein  have  been  conferred  the  status  of  'permanent'

employees.   However,  an  important  question  which  arises  is  as  to

whether such 'permanent' employees are same as employees appointed

3 Civil Appeal No. 213 of 2013; 26th October, 2016

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on 'regular' basis or their services stand regularized.  This aspect shall

be touched upon and dealt with a little later.  At this stage, reference is

made to the aforesaid judgment in the case of  Jagjit  Singh3  for the

purpose that even if principle of 'equal pay for equal work' is applicable

and the pay in the regular pay-scale is admissible to such employees,

these employees would be entitled to minimum of the regular pay-scale

and not the increments.  This case is taken note of and discussed in

Jagjit Singh3 in the following manner:

“36. Secretary, State of Karnataka v. Umadevi [(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  entitled  to wages, equal to the salary of regular employees of their cadre,  with  effect  from  the  date  from  which  they  were appointed. The direction issued by the High Court resulted in payment of higher wages retrospectively, for a period of 10 and more years. It would also be relevant to mention, that  in  passing the above direction,  the High Court  had relied on the decision rendered by a three-Judge bench of this Court in Dharwad District PWD Literate Daily- Wage

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Employees  Association  v.  State  of  Karnataka[(1990)  2 SCC  396].  The  Constitution  Bench,  having  noticed  the contentions of  the rival  parties,  on the subject  of  wages payable  to  daily-wagers,  recorded  its  conclusions  as under:-  

“55.  In  cases  relating  to  service  in  the  commercial taxes department,  the High Court  has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular  employees  of  their  cadre  in  government service,  with  effect  from the dates from which they were respectively appointed. The objection taken was to  the  direction  for  payment  from  the  dates  of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary  equal  to  the  salary  and  allowances  that  are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the  High  Court  in  the  case  was  whether  these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best,  the  Division  Bench  of  the  High  Court  should have directed that wages equal to the salary that is being  paid  to  regular  employees  be  paid  to  these daily-wage employees with effect from the date of its judgment.  Hence,  that  part  of  the  direction  of  the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial  Taxes  Department  in  government service, from the date of the judgment of the Division Bench  of  the  High  Court.  Since,  they  are  only daily-wage  earners,  there  would  be  no  question  of other 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

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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 to do justice to them.”  

We have extracted the aforesaid paragraph, so as not to make  any  inference  on  our  own,  but  to  project  the determination rendered by the Constitution Bench, as was expressed  by  the  Bench.  We  have  no  hesitation  in concluding,  that  the  Constitution  Bench  consciously distinguished  the  issue  of  pay  parity, from the  issue  of absorption/regularization in service. It was 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. The Constitution Bench expressed the  view, that  the  concept  of  equality would  not  be  applicable  to  the  issue  of absorption/regularization in  service.   And conversely, on the subject of pay parity, it was unambiguously held, that daily-wage  earners  should  be  paid  wages  equal  to  the salary at the lowest grade (without any allowances). ”

13) Another significant reason for referring to the judgment of Jagjit Singh3

is that the Court culled out the principles of 'equal pay for equal work'

from  the  earlier  judgments  on  the  subject  and  collated  them at  one

place.  Further, the Court also drew an important distinction between the

grant of benefit of 'equal pay for equal work' to temporary employees on

the one hand and the status of regular employees on the other hand.

Insofar as parameters of principles of 'equal pay for equal work' deduced

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by the Court are concerned (para 42), our purpose of deduction stated in

sub-para vi thereof is important, which is reproduced below:

“(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An  employee  appointed  on  a  temporary  basis,  cannot claim to be placed in the regular pay-scale (see – Orissa University of Agriculture & Technology Vs. Manoj K. Mohanty4). ”

14) Insofar as distinction between pay parity and regularisation of service is

concerned, referring to the Constitution Bench judgment in  Uma Devi2,

the Court made the following observations:

“We  are  of  the  considered  view,  that  in  paragraph  44 extracted  above,  the  Constitution  Bench  clearly distinguished the issues of pay parity, and regularization in service.  It  was held,  that on the issue of pay parity, 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.

4 (2003) 5 SCC 188

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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., whether these employees can be

treated as 'regular' employees in view of the aforesaid classification? In

other  words,  with  their  classification  as  'permanent',  do  they  stand

regularized in service?

16) For  this  purpose,  we would first  like to refer  to  the provisions of  the

Madhya Pradesh  Industrial  Employment  (Standing  Orders)  Act,  1961

and  the  Rules  made  thereunder  known  as  the  Madhya  Pradesh

Industrial Employment (Standing Orders) Rules, 1963. Section 3(c) of

the  Act  defines  “Standing  Orders”  and  as  per  Section  6,  the  State

Government  may, by  notification,  apply  Standard  Standing  Orders  to

such class of  undertakings and from such date  as may be specified

therein.   Section 21 empowers the State Government to make rules to

carry out the purposes of the said Act which are required to be notified.

It empowers the State Government to frame Standard Standing Orders

as well.  It is in exercise of powers under Section 21(1) of the Act that

the  State  Government  has  framed  Madhya  Pradesh  Industrial

Employment (Standing Orders) Rules, 1963 (hereinafter referred to as

the  'Rules').  Annexure   to  these  Rules  contains  standard  Standing

Orders for all undertakings in the State.  Standing Order No. 2 of this

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Order enumerates classification of employees which has already been

reproduced above.  As per this classification, an  employee would be

known  as  'permanent  employee'  who  has  completed  six  months'

satisfactory service in a clear vacancy in one or more posts whether on

probation or otherwise or a person whose name has been entered in the

muster roll and who is given a ticket of 'permanent employee'.  It follows

from the above that merely by putting in six months' satisfactory service,

an employee can be treated as 'permanent employee'.   Rights which

would  flow to  different  categories  of  employees  including  'permanent

employee' are not stipulated in these Rules or even in the parent Act.  It

can  be  gathered  from  Rule  11  of  the  said  Rules,  which  relates  to

termination of employment, that in case of a 'permanent employee' one

month's notice or wages for one month in lieu of notice is required when

the employment of a 'permanent employee' is to be terminated.  On the

other hand, 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.

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.

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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

& Ors. v. Indore Development Authority & Ors.5, 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 classification of employees in five categories. The 1973 Act, as noticed hereinbefore, clearly mandates that all  posts should be sanctioned by the  State  Government  and all  appointments  to  the  said cadre must be made by the State Government alone. Even the appointments to the local cadre must be made by the Authority. The said provisions were not complied with. It is accepted that no appointment letter was issued in favour of the appellants. Had the appointments of the appellants been made in terms of the provisions of the Adhiniyam and the  Rules  framed  thereunder,  the  respondent  Authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the appellants herein. Who  made  the  appointments  of  the  appellants  to  the project or other works carried on by the Authority is not known. Whether the person making an appointment had the requisite jurisdiction or not is also not clear. We have noticed  hereinbefore  that  in  the  case  of  Om  Prakash Mondloi, the CEO made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of ODA work. The said order is not an “offer of appointment” by any sense of the

5 (2005) 1 SCC 639

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term.

xxx xxx xxx

31.   The  Standing  Orders  governing  the  terms  and conditions  of  service  must  be  read  subject  to  the constitutional limitations wherever applicable. Constitution being the suprema lex, shall prevail over all other statutes. The  only  provision  as  regards  recruitment  of  the employees is contained in Order 4 which merely provides that the manager shall within a period of six months, lay down  the  procedure  for  recruitment  of  employees  and notify it on the notice board on which Standing Orders are exhibited  and  shall  send  copy  thereof  to  the  Labour Commissioner.  The  matter  relating  to  recruitment  is governed  by  the  1973  Act  and  the  1987  Rules.  In  the absence  of  any  specific  directions  contained  in  the Schedule appended to  the Standing  Orders,  the statute and the statutory rules applicable to the employees of the respondent shall prevail.”

19) The issue came up again in the case of  M.P. State Agro Industries

Development Corporation Ltd. & Anr.  v.  S.C. Pandey6 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.

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

6 (2006) 2 SCC 716

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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 would be void and the effect thereof would be that no legal right was derived by the employee by  reason  thereof.

18.  The said decision applies on all fours to the facts of this case. In Mahendra L. Jain [(2005) 1 SCC 639 : 2005 SCC (L&S) 154] this Court has categorically held that the Standing  Orders  governing  the  terms  and  conditions  of service  must  be  read  subject  to  the  constitutional  and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a  case  where  there  existed  a  vacancy,  the  same  was required  to  be  filled  up  by  resorting  to  the  procedures known  to  law  i.e.  upon  fulfilling  the  constitutional requirements as also the provisions contained in the 1976 Regulations.  No finding of  fact  has been arrived at  that before  the  respondent  was  appointed,  the  constitutional and  statutory  requirements  were  complied  with.

xx xx xx

22.  Such appointments, in our opinion, having regard to the decisions in  Mahendra L.  Jain  [(2005) 1 SCC 639 : 2005 SCC (L&S) 154]  and  Manoj  Shrivastava  [(2006) 2 SCC 702] must be made in accordance with extant rules and regulations. It is also a well-settled legal position that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. Otherwise also the legal position in this behalf is clear  as  would  appear  from  the  decision  of  this  Court inDhampur Sugar Mills Ltd. v. Bhola Singh [(2005) 2 SCC 470 : 2005 SCC (L&S) 292] apart from Mahendra L. Jain [(2005) 1 SCC 639 : 2005 SCC (L&S) 154].”

20) A direct judgment on the subject is State of M.P. & Ors. v. Lalit Kumar

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Verma7 wherein  it  was  held  that  a  workman  would  be  entitled  to

classification  as  permanent  or  temporary  employee  if  the  conditions

precedent  are  satisfied.   It  was  held  that  the  respondent  was  not

appointed  against  the  clear  vacancy,  he  was  not  appointed  in  a

permanent  post  or  placed  on  probation.   This  Court,  thus,  held  that

working  on  daily  wages alone  would  not  entitle  him to  the  status  of

permanent employee.  Para 7 of this judgment needs to be looked into.

“7. A workman, therefore, would be entitled to classification of  permanent  or  temporary  employee,  if  the  conditions precedent therefor are satisfied. The respondent 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'.

7 (2007) 1 SCC 575

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22) We  may  mention,  at  this  stage  that  this  aspect  has  come  up  for

consideration,  in  another  context,  in  State of  Madhya Pradesh and

Others vs.  Dilip Singh Patel  and Others8.   That was a case where

similarly  situated  employees,  who  were  classified  as  'permanent

employees' under the Standing Orders Act, were given minimum of the

pay-scale attached to their posts.  However, after the implementation of

Sixth  Pay  Commission,  benefits  thereof  were  not  extended  to  these

employees.   High Court held that they would be entitled to have their

pay  fixed  as  per  the  revised  scales  in  accordance  with  the

recommendations of Sixth Pay Commission which were accepted  qua

regular employees.  This Court, though, upheld the orders of the High

Court giving them the benefit of revision of pay-scale pertained to Sixth

Pay Commission, but at the same time made it clear that they would be

entitled to minimum salary and allowances as per the said revised scales

and would not be entitled to any increments.  It  was further held that

such increments would be admissible only after regularisation of their

services which regularisation was to take place as per the seniority list

with due procedure.  Following passage from the said judgment, which

captures the aforesaid directions, is quoted hereunder:

“We  have  heard  learned  counsel  for  the  parties  and perused  the  records.   It  appears  that  the  respondents earlier moved before the Administrative Tribunal, Gwalior by  filing  original  applications  such  as  O.A.  No.  648  of 1995,  O.A.  No.  293  of  1991  etc.  In  compliance  of  the

8 Civil Appeal Nos. 8431-8432 of 2014; decided on August 27, 2014.

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orders  passed  in  such  original  applications,  the  Chief Engineer,  Yamuna  Kachhar,  Water  Resources Department, Gwalior (M.P.)( by orders issued in between April,. 2004 and June, 2004 provided the mi8nimum wages and allowances to the respondents without increment as per the Schedule of  the pay scale from the date of  the order  of  the  Tribunal.   It  was  further  ordered  that  the regularization of the daily wages employees shall be made as per the seniority list with due procedure and the benefit of increment and other benefits can only be granted after the regularisation as per the Rules.  It was ordered that the order  of  the  Court  for  benefit  of  minimum  wages  and allowances shall be …..........

From  the  aforesaid  facts,  it  is  clear  that  the respondents  are  entitled  for  minimum  wages  and allowance as per the fixed Schedule of the pay scale but without any increment.  In such case, if the pay scale is revised  from  time  to  time  including  the  pay-scale  as revised  pursuant  to  Sixth  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.

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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 & Anr. v. T.K. Suryanarayan & Ors.9).

25) These contempt petitions are, accordingly, dismissed.

.............................................J. (A.K. SIKRI)

.............................................J. (N.V. RAMANA)

NEW DELHI; DECEMBER 15, 2016.

9 (1997) 6 SCC 766

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