STATE OF MADHYA PRADESH Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) THIS writ appeal is filed by the appellants State of Madhya Pradesh challenging the order dated 28th July, 2006 passed by Single Bench of this Court in Writ Petition No. 2661/03 whereby the Writ Court has allowed the writ petition filed by the petitioners ('respondents' herein) and declared them to be the State employees.

(2.) BRIEF facts of the case are that the respondents employees have filed a writ petition before the Single Bench alleging that they were appointed in a cell constituted by the State Government namely Madhya Pradesh State Municipal services (Technical Cell) in exercise of the powers under Section 86 of the madhya Pradesh Municipalities Act, 1961 (for short "the Act" ). These employees were appointed by the Director, Urban Administration, Bhopal and deputy Director, Urban Administration. The main object of constituting the said cell was to look after the construction work, water supply facility and other technical jobs of the municipalities. Copy of the decision for constituting the said cell is Annexure P-1 with the record of the writ petition dated 27th May, 1976. In the said decision, it is mentioned that at a number of times, there are financial difficulties with the small municipalities and they cannot engage highly paid employees for carrying on their work. Hence, the Government has decide to constitute the cell and to post Engineer, Sub-Engineers, Tracers, etc. , in various municipalities. It was agreed to by Annexure P-2, with the record of the writ petition, that these employees shall get the same pay scale which is payable to the employees of the State Government and Public Works Department, however, these employees shall be treated as municipal employees. Vide annexure P-3 with the record of the writ petition, the Government has decided that the Engineers appointed under the said cell shall be entitled to the same allowances and other benefits and GPF will be deducted from their salary, so that they can get pension. Vide Annexure P-4, dated 3-12-1976, it was further mentioned that these Engineers will get the same salary which is payable to the government employees and they will also be entitled to the same benefits and, compulsory deductions will be made from their salary. Annexure P-5 is the circular seeking clarification about the facilities to these employees and it was clarified that these employees shall get the same facilities as are available to the government employees. Vide Annexure P-6, dated 18-10-1985 it was again mentioned that Executive Engineers, Sub-Engineers, Tracers, etc. will get the same salary which is payable to the employees of Public Works Department. Thus, it is clear that the Appointing Authority of these employees are the director, Urban Administration, Bhopal and Deputy Director, Urban administration and they are their Disciplinary Authorities. The Government has right to transfer these employees from one municipality to another.

(3.) CONSIDERING all these aspects, the Writ Court has held that the total control over the respondents employees is that of the State Government, hence, the Single Bench allowed the writ petition filed by the petitioners (respondents herein) and declared that these employees to be State Government employees. The reasoning assigned by the learned Writ Court Bench is as under:-With regard to functions of the petitioners, it is clear that the petitioners are working in the office of Deputy Director, Urban administration, Gwalior Division, Gwalior. They have been appointed in the aforesaid office. The office was created in order to extend the help and supervise the construction work taken by the municipalities. The municipalities have been assigned the work of construction also in their respective areas. Earlier the work was assigned to the Public Works Department. Hence, from the above facts, it is clear that the office of Deputy Director, Urban administration in which the petitioners are working is performing the functions of the State Government and from the facts stated above, it is clear that the State Government has total control with regard to their appointment, disciplinary action and payment of salary, creation of posts, fixation of terms and conditions of employment. In such circumstances, in my opinion, the petitioners are the employees of the State Government and they fall within the definition of "state Employees". The aforesaid order passed by the learned Writ Court is under challenge in this writ appeal.