UMESH TIWARI Vs. STATE OF MP

JUDGEMENT

(1.) Since the common question is raised in both the writ petitions, common relief is claimed, this order will also govern disposal of W.P. No. 5028/2011. However, facts are taken from W.P. No. 8939/2010. By this petition, the petitioners have called in question the validity of order dated 17.5.2010 by which it is said that petitioners would not be entitled to minimum of the pay scale as the petitioners were appointed illegally on daily wages. It is stated in the order that since the Committee has categorically held that the petitioners are not entitled to grant of the minimum pay scale, such order could not have been issued in their respect. It is contended that such direction issued by the respondents is contrary to the order passed by this Court in W.A. No. 778/2009 on 5.11.2009. It is contended that since the order passed in the writ appeal aforesaid has attained finality, it was not open to the respondents to pass any order rejecting the claim of the petitioners. It is contended that no opportunity of hearing was given to the petitioners in appropriate manner as only a show-cause notice was given to them, of which a reasonable reply was filed by them but such facts have not been taken into consideration, as such the order impugned is bad in law.

(2.) The return has been filed by the respondents and it is contended by them that erroneously the petitioners were granted the minimum of the regular pay scale, though they were not entitled to the same. Earlier an order was passed by the respondents cancelling the said order of giving minimum of the pay scale to the petitioners. Said order was called in question in a writ petition, which was dismissed in limine. A writ appeal was filed by the persons like petitioners and since in the said writ appeal it was held that the petitioners were not granted any opportunity of hearing, the order passed by the respondents was quashed with liberty to the respondents to take action against the petitioners after affording them an opportunity of hearing. It is contended that in view of the law laid-down by the Apex Court in the case of Secretary, State of Karnatak and others v. Uma Devi and others, 2006 109 FLR 826 . the persons like petitioners, who are nothing but the backdoor entry, will not be entitled to the benefit of minimum of the pay scale. It is contended that the writ petition is, thus, liable to be dismissed.

(3.) After hearing learned Counsel for the parties at length and perusing the record, it appears that a folly was committed by the respondents by issuing such an order. Undisputedly, persons like petitioners were engaged on daily wages for some work available with the respondents. There was some litigation on account of which respondents were required to pass the order. One such order was issued in respect of petitioner No. 1 in the present case on 3.8.2004 categorically saying that in terms of the order passed by this Court in W.P. No. 11358/2003, decided on 24.2.2004, the claim of petitioner No. 1 was to be considered for regularization but since there was no post available at the relevant time in terms of certain directions issued by the Engineer-in-Chief, the petitioner No. 1 was to continue in the establishment of Work Charged Contingency and was to be paid minimum of the regular pay scale. Similar order was passed in respect of petitioner No. 2. Such rights were created in favour of the petitioners only because as per the scheme of regularization of daily wagers made by the State Government prior to the decision given in the case of Uma Devi by the Apex Court, the petitioners were already found fit to be regularized. This being so, it was not proper on the part of the respondents to dispense with the services of the petitioners in respect of which the order was passed on 24.7.2009. This was the order, which was called in question in earlier round of litigation being W.P. No. 7625/2009 (S), which was dismissed in limine. Against the order of learned Single Judge, the writ appeal was filed being W.A. No. 778/2009. The Division Bench of this Court has considered the aforesaid facts in the order passed in the aforesaid writ appeal and has held categorically that the order dated 14.5.2004 was passed by the respondents extending the benefit to the persons like petitioners in terms of the direction given by this Court in some of the writ petitions. It was categorically held that the order impugned in the writ petition earlier filed could not have been issued without affording an opportunity of hearing. In view of this, the Division Bench of this Court has quashed the order dated 24.7.2009 and has further granted relief to the petitioners in the following manner: