Sitaram Ahirwar & Ors. vs The State Of Madhya Pradesh & Ors.

All these writ petitions have been filed by the petitioners under Article 226 of the Constitution of India challenging the inaction of the respondents by not extending the benefits of policy of General Administration Department dated 07.10.2016 which is framed for all the daily wages employees of the State of Madhya Pradesh.

Since there are common facts and grounds in all the petitions, all of them are being heard and decided analogously through a common order. For the purpose of this order, the facts are being taken from W.P. No.19932/2020 as a leading case.

The petitioners have filed this petition seeking following reliefs:

It is the case of the petitioners that the petitioners were engaged as Hand Pump Mechanics in the Public Health Engineering Department during 1993–2000 under the TRYSEM (Training of Rural Youth for Self-Employment) Scheme introduced by order dated 30.09.1983. The petitioners were engaged on contractual basis and were being paid approximately Rs.9,000/- per month. They were trained as Mechanics and issued training certificates by the department. They were deployed for Vidhan Sabha, Lok Sabha and Panchayat elections, Kumbh Mela duties, and COVID-19-related duties. They claim to have continuously performed duties similar to regular employees. Several daily-wage employees were classified during 2003– 2005; however, the similarly situated TRYSEM Mechanics working in Tikamgarh Division were allegedly denied similar benefits. The petitioners, however, claim that they were not regularized. The GAD Policy dated 07.10.2016, framed for eligible daily-wage employees, was allegedly adopted by the respondents to extend similar benefits to similarly situated TRYSEM Mechanics namely Gorishankar, Fateh Singh and Balram in Bhind Division. The petitioners therefore claim equal treatment and extension of the benefits of the GAD Policy dated 07.10.2016, along with consequential service and monetary benefits, on the ground that they are similarly situated to the TRYSEM Mechanics who have already received those benefits. It is submitted by learned counsel for the petitioner that the petitioners, who have been working under the TRYSEM project of the State Government under contract, be declared as a permanent labour under the Standard Standing Orders, which are framed under Section 21 of M.P. Industrial Employment (Standing orders) Act, 1961 and Rules, 1963.

It is the case of the petitioners that though they have been working on contractual basis, but as their engagement is continuous, therefore, as per SSO, 1961, they be declared as permanent employee, and consequently, they be benefited by the Viniyamitikaran policy of General Administrative Department dated 07.10.2016.

It is submitted by learned counsel for the petitioner that the State had formulated a policy dated 30.09.1983 under TRYSEM Project for giving some financial assistance to the young villagers by giving them opportunity to work of repair of hand pumps, and accordingly, they were given work. However, in the present petition, the petitioners have not filed any document, to substantiate that when petitioners were for the first time engaged by the respondents. Only submissions have been made in the petition with regard to their continuous employment since the project was announced.

The State, in its return, has filed a document of contract of 01.09.2016 to demonstrate that the petitioners have been working on contract for repairing work of hand pumps.

On perusal of the said contract dated 01.09.2016 (Annexure R/2), it is found that the entry of the honorarium is blank. It also does not disclose that whether the petitioners were earlier also employed under the same agreement or the said agreement is executed afresh considering their past contractual services.

The petitioners have also prayed that if the petitioners were declared permanent daily wager on the basis of their continuous service for more than 240 days in a calendar year, then they would be benefited by applying the scheme of the State dated 07.10.2016, accordingly prayed for direction to the respondents to consider their case in the light of the scheme dated 07.10.2016 for Viniyamitikaran.

Per contra, learned counsel for the respondents has submitted that the petitioners were purely engaged on a contractual basis. The petitioners have never worked continuously for more than 240 days.

Heard learned counsel for the parties and perused the record.

From perusal of the pleadings and the documents submitted by the petitioners, it is found that though the petitioners have pleaded that the petitioners have been working from a long period of time, but to substantiate that no document has been filed with the petition. The respondents in return has submitted that the petitioners are engaged on a contractual basis and an agreement letter dated 01.09.2016 has been filed as Annexure R1, which also does not disclose period for which the petitioners have been engaged . It is also not disclosed that what honorarium is to be paid in terms of that agreement, as the entry of the honorarium is blank.

From perusal of the documents of the project of the State filed as Annexure R/1, it is found that the State with an object to give young generation of the rural population some kind of financial assistance has framed a policy, according to said policy young generation can be employed with some work of hand pump repair in the villages. However, whether the petitioners have been employed as a daily wager or on a contractual basis, or on any other method, that is not clear from the record as the petitioners have only made submissions in the petition and no document to substantiate the case of the petitioners has been filed. However, the State in the return has filed a document of the contract which is of 01.09.2016 with blank entries. Therefore, this Court under Article 226 of the Constitution of India cannot gather that the petitioners have been working for a long period of time and had earned the status of permanent, that is the absolute domain of the labour court on the basis of the evidence tendered by the parties.

If the petitioners claim the status of permanent employee then there are two methods. Firstly by the employer and secondly by the competent court of law. Once that has been proved before the competent court of law, then only the status of permanent can be earned by operation of Standard Standing Orders. This Court, in absence of any such material, cannot grant any such status. In the considered opinion of this Court, this Court under Article 226 of the Constitution of India cannot extend such status.

Regarding the relief sought by the petitioners that upon earning the status of permanent labour, the petitioners be benefited by the scheme of 2016. It is found that the scheme of 2016 was framed to regularize the services of the daily wagers, who have been employed by various departments of the State. Earlier to said scheme, the services of the daily wagers were governed by Rules of 2013, which were repealed by the scheme of 2016 and the daily wagers who have earned the status of permanent or otherwise, they have been benefited with the scheme of 2016 subject to fulfilment of the conditions enumerated in the said scheme i.e. who have worked from 2007 to 2016 continuously. Even for consideration of said benefit which accrue or flow from the scheme, the petitioners have to establish that they have worked continuously from 2007 to 2016.

From perusal of the record, it is found that mere submissions have been made that the petitioners have been working continuously from a long time under the said project. It is not disputed by the State that the petitioners have been working with the respondent department, but it has been stated that under the contracts they have been engaged by contract letter dated 01.09.2016. The State Government had also formulated a policy in respect of contractual employees. If the petitioners are falling within the definition of contractual employee and are fulfilling the criteria and the parameters which are provided in the policy of the contractual employee, then the case of the petitioners can be very well considered by the State Government. For that, the petitioners are always at liberty to file necessary representation in the light of the policy of the contractual employee. The said policy has been brought on record by the petitioner as Annexure P/18.

In the considered opinion of this Court, the status of permanent cannot be granted by this Court under Article 226 of the Constitution of India as the petitioner have themselves claimed to be a contractual employee, and the State has filed the document of their contract letter. The continuation of engagement of petitioners for more than 240 days in a calendar year is a disputed question of fact, which cannot be decided by this Court under Article 226 of the Constitution of India.

In view of the above, the petition is disposed of with a liberty to petitioners to file a detailed representation demonstrating their continuous past services for the purpose of benefit which might have been accrued upon them on the basis of the policy. If such representation is filed by the petitioners, then the same shall be decided by the respondents in accordance with law within a period of two months from the date of production of certified copy of this order.

Needless to say that this Court has not expressed any opinion on the merits of the case and that is to be decided on the available merits of the case.

With the aforesaid, these petitions are disposed of.

A copy of this order be placed in the file of connected W.P. No.20003/2020 and W.P. No.4640/2024.