Holding

Clause 2 of the Annexure to the Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963 deals only with entry‑stage classification and not with promotion; temporary officers cannot be deemed permanent in higher posts but must be paid the emoluments of those posts for the period served.

Summary

The appellants, workmen of the Madhya Pradesh State Road Transport Corporation, were performing duties of higher posts (e.g., Booking Agent acting as Sub‑Depot In‑charge) and sought classification under clause 2(i) and (vi) of the Annexure to the Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963, together with payment of the emoluments of those higher posts. The Labour Court allowed their claim, but the High Court set aside that order on writ petitions. On appeal, the Supreme Court examined whether clause 2 pertains only to classification at the entry stage and not to promotion, and whether employees temporarily posted to higher posts are entitled to permanent status. The Court held that the clause indeed deals only with entry‑stage classification; therefore, temporary officers cannot claim permanent status in the higher post, though they must be paid the emoluments of the post for the period they performed its duties. Consequently, the Supreme Court dismissed the appeals, upholding the High Court’s decision.

Issues considered

Whether clause 2 of the Annexure to the Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963 relates to classification at the entry stage only and not to promotion.
Whether workmen temporarily posted to higher posts can claim permanent status in those posts under the said clause.
Whether such workmen are entitled to the emoluments of the higher post for the period they performed its duties.

Legislation cited

Industrial Employment (Standing Orders) Act, 1946

Subjects

classificationpromotionstanding orderslabour lawtemporary postingemolumentsindustrial employment rulesMadhya Pradeshworkmen rights

Judgment

A DWARKA PRASAD TIWARI
v.
M.P. STATE ROAD TRANSPORT CORPORATION AND ANR.

SEPTEMBER 13, 2001

B [S. RAJENDRA BABU AND S.N. VARIAVA, JJ.]

Labour Laws:

M.P. Industrial Employment (Standing Order) Rules, 1963.
c Appellants/Workmen approached Labour Court.for classification ofhigher
posts and for payment o.f Salaries on higher posts in which they were working-
Clause 2(i) and (vi) ofAnnexure to the Rules-Scope o.f class{fication-lt deals
with class{fication and not promotion-Class~fication means nature of
employment viz. permanent, seasonal, probationer, badlis, apprentices and
D temporary-Labour Court allowed the claim-On appeal High Court held-
Proviso to standing order does not apply to promotion or regularisation in
higher post-On appeal held: No interference with the views expressed by High
Court-However, employees should be paid emoluments as attached to higher
post for the period served/or serving.

E The appellants were workmen holding different Posts but had been
discharging duties on higher Post. They approached the Labour Court for
classification in terms of clause 2 of Annexure to M.P. Industrial
Employment (Standing Order) Rules, 1963 as regards the posts served and
also for payment attached to higher posts for the periods served.
F The Labour Court allowed the claim of the petitioners/appellants.
Writ Petitions were preferred against the order of Labour Court. Single
Judge of High Court allowed the writ petitions.Against the order of Single
Judge, appeals were preferred which were dismissed. Hence these appeals.

G Dismissing the appeals, the Court

HELD : 1. It is not necessary to set out the law on the matter nor is it
necessary to remand. the case after setting aside the order. However, the
matter is examined on merit. [78-G-H]

H Loknuit News Paper Pvt. Ltd. v. Shankar Par.~had, [1999) 6 SCC 275;
76
D.P. TIWARI v. M.P. STATE ROAD TRPT. CORPN. 77
Umaji Keshao Meshram v. Radhikabai, [1986] Supp. SCC 401; Ratnagiri A
Distt. Central Co-op. Bank Ltd. v. Dinkar Kashinath Water & Ors., [1993]
Supp. 1 SCC 9 and Sushilabai Laxminarayan Mudliyar & Ors. v. Nihalchand
Waghjibai & Ors., [1993] Supp. 1 SCC 11, relied on.

2. Clause 2 of Annexure to the M.P. Industrial Employment (Standing
Order) Rules, 1963 pertains only to classification at entry stage and not to B
promotion. Employees posted temporarily on higher promotional post
cannot claim status of permanent employee under this clause. [79-D]

M.P. State Road Transport Corporation v. Narayan Singh Rathore &
Ors., (1994) M.P.J. 1959 and K.K. Krishnan v. Industrial Court of M.P.
Indore, (1992) M.L.J. 570, approved. c
3. Under the relevant statutory orders employees have been classified
as permanent, seasonal, probationer, badlis, apprentices and temporary. A
permanent employee is an employee who· served satisfactorily on a post
against clear vacancy and therefore relates to employment as such and not
to the category of the post in which a person is employed. There is a clear D
distinction between the nature of employment and hierarchy of the post in
which a person is employed. The relevant standing order categorises the
nature of employment and it does not classify the individual employees in
different posts according to heirarchy created in a department. Proviso to
standing order does not apply to promotions or regularisations in higher E
posts. It applies only to temporary employees as defined in standing order.
If the proviso is applied to promotions, it will affect the future of several
other employees because promotions are dependant upon conditions of
service laid down for uniform application. If the permanent status is
granted to officiating employees without following the due procedure for
promotion, such a conclusion would be wholly unfair and would allow F
those in fortuitous circumstances to be put incharge of higher posts, ignoring
the claims of other eligible employees and would lead to disastrous
consequences. Thus, the High Court was right in its view. It is also clarified
that appellants should be paid emoluments as attached to higher post for
the period they had discharged their duties or are discharging their duties.
G
[81-H; 82-A-B; C-D]

CIVIL APPELLA'TE JURISDICTION: Civil Appeal No. 636 of 1998.

From the Judgment and Order dated 20.3.97 of the Madhya Pradesh
High Court in W.P. No. 957 of 1995.
H
78 .. SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
WITH

C.A. Nos. 2372-2373 and 2375-2378 of 1999.

Dr. T.N. Singh, L.S. Chauhan, N.R. Choudhary, Somnath Mukherjee,
J.S. Pandey, Shiv Sagar Tiwari and Rajesh Singh for the Appellant.
B A.K. Chitale, Niraj Sharma, A.K. Srivastava, Ms. J.S. Wad, Ashish Wad,
Ms. Niharika Bahl and Manoj Wad for the Respondents.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. The appellants before us are workmen on the
c establishment of the M.P. State Road Transport Corporation. In these appeals
the workmen had approached the labour court for classification as Booking
Agents and for payment of wages for different periods for which they had
worked as such on the establishment of the first respondent. The appellant in
Civil Appeal No. 636 of 1998 sought to be classified as Traffic Supervisor- II
on the ground that though he was holding the post of Booking Agent but was
D
directed to discharge the duties of Sub-Depot Incharge' which is equivalent to
the post of Traffic Supervisor-II. The appellants in the other appeals also
claimed a similar benefit. The labour court allowed the claim of the appellant.
Writ petitions were prefen-ed against the same. The learned Single Judge,
following the decision of the Madhya Pradesh High Court in Madhya Pradesh
E State Road Tram,port Corporation v. Narain Singh Rat ho re & Ors., ( 1994)
MPLJ 959, allowed the writ petitions and set aside the orders made by the
labour court. Letters Patent Appeals were preferred against the order made by
the learned Single Judge in each of these cases either by a common or by a
separate order quashing the order made by the labour court.

F In this Court the principal contention urged on behalf of the appellants
is that the writ appeal was maintainable on the Letters Patent side.

This Court in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, [1999] 6
sec 275, has explained the legal position in this respect after adverting to the
decisions of this Court in Umaji Keshao Meshram v. Radhilwbai, [1986] Supp.
G SCC 401; Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath
Wcitve & Ors., [1993] Supp 1 SCC 9; and Sushilabai Laxminarayan Mudliyar
& Ors. v. Nihalchand Waghjibhai Shaha & Ors., [1993] Supp 1 SCC 11.
Therefore, it is no longer necessary for us to set out the law on the matter nor
is it necessary to remand the case after setting aside the order made ia the writ
H appeal to examine the case in the light of the decision of this Court.
D.P. TIWARI v. M.P. STATE ROAD TRPT. CORPN. [RAJENDRA BABU J.] 79
However, we propose to consider these matters on merits as is done by A
the learned Single Judge.

The learned Single Judge followed the decision of the Full Bench in
Narain Sin8h Rathore (supra) and, therefore, what is necessary to be considered
in these cases is the correctness of the view expressed by the Full Bench
therein. B
The Full Bench held that under the Madhya Pradesh Industrial
Employment (Standing Order) Rules, 1963, clause 2(i) and (vi) of the Annexure
to the said Rules pertains only to classification of employee which relates to
classification at entry stage, that is, on the stage at which person enters
employment and not to promotion stage. Employee posted temporarily on C
higher promotional post cannot claim status of permanent employee in the said
post under clause 2 on the plea that what he is seeking is classification and not
promotion. This decision accepted the correctness of the decision in K.K.
Krishnan v. Industrial Court of M.P., Indore, [1992] MLJP 570.

After adverting to the decision in K.K. Krishnan~· case in detail, this is D
what the Full Bench of the High Court in Narain Singh Rathore (supra) stated:

"Clause 2 of the Standing Orders in the Annexure to the rules deals
with classification of employees. This is in relation to item No. (1) of
the Schedule to the Act. It says that the employees should be classified
into six categories, i.e., permanent, permanent seasonal employee, E
probationer, Badli, apprentice, temporary employee. It defines each of
these six categories. 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. Temporary employee has been defined as an employee who F
has been employed for work which is essentially of a temporary
character or who is temporarily employed as an additional employee
in connection with temporary increase of the work of permanent
nature. Where he is required to work continuously for six months, he
shall be deemed to be a permanent employee. The definitions have to G
be construed iti the light of the fact that it is part of the effort directed
at classification of employees. Definition of permanent employee
refers to an employee employed in a clear vacancy while the definition
of temporary employee doe·s not prefer to clear vacancy. Clause (3)
deals with 'ticket' and allied matters. Employees other than those
belonging to clerical, supervisory or technical personnel shall be H
80 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A provided tickets which will bear the name of the Department, date of
entry in service, his number, the record of daily attendance etc. Badli
employee shall be provided Badli Card. Temporary employee shall be
provided temporary card. Apprentice shall be provided with apprentice
card." [pp. 967, 968]

B "All the decisions of this Court referred to earlier are unanimous in
regard to one aspect, namely, what is dealt with in clause (2) of the
Annexure to the Rules is classification and not promotion. An employee
can claim classification but not promotion by virtue of this clause. A
probationer may be confirmed, a Badli may be absorbed and an
c apprentice may be regularly employed. He may become permanent
employee. Once an employee becomes eligible or entitled for status as
permanent employee he is entitled to the consequential classification.
When the employee acquires the status of a permanent employee, so
far as he is concerned, Clause (2) of Annexure to the rules would have
worked itself out. There is no question of such permanent employee
D acquiring permanent status again under clause (2). Once he acquires
1
the status of permanent employee, he is protected to the extent
contemplated by law and the regulations or rules relati~g to service
conditions. If the conditions of service provide for a channel of
promotion, he is entitled to look forward to be considered for such
promotion and if he is denied promotion, it may be open lo him to
E ventilate his grievance in an appropriate forum. In other words, the
classification contemplated in Item-I of Schedule to the Act and Clause
(2) of the Annexure to the Rule is classification at a stage which could
be spelled out from the classification contemplated namely, permanent,
permanent seasonal, probationer, Badli, Apprentice and temporary.
F The stage is only the entry stage, i.e., the stage at which the person
enters employment. The classification cannot relate to the stage of
promotion or the promotion post which can be governed only by the
service conditions applicable to the employees. Rules or Regulations
framed by the Corporation providing for channel or promotion do not
in any way detract from the Standing Orders and Clause (2) of the
G Annexure to the rules does not detract in any way from the scheme of
promotion provided by the rules or regulations. To say that an employee
who was asked to work on a higher post for a period on account of
exigencies of situation is not asking for promotion and he is asking
only for appropriate classification on the post on which he is working
is to ignore both the scheme underlying the rules relating to classification
H
D.P. TIWARI v. M.P. STATE ROAD TRPT. CORPN. [RAJENDRA BABU J.] 81
and the promotion rules. An employee may be asked to work in a A
higher post for some time on account of administrative exigencies. He
does not thereby acquire a right to the higher post, as long as he has
not been promoted by the Competent Authority in accordance with the
regulations or rules and on a consideration of all employees in the
feeder categories who are in the field of choice. An employee who is
B
not entitled to be considered for promotion or who is yet to be
considered for promotion and therefore, cannot be deemed to have
been promoted, cannot secure the same end by stating that what he is
seeking is classification and not promotion. What cannot be achieved
directly cannot be permitted to be achieved in an indirect manner. It
is one thing to say that an employee who has been asked to work in c
a higher post temporarily must get the emoluments attached to the
higher post; it is quite a different thing to say that he must be regarded
as a permanent incumbent of the higher post by being classified as
such. The question of exploitation and unfair labour practice does not
arise since it will be the duty of the employer to pay him the emoluments D
attached to the higher post as long as he discharges the duties attached
to the higher post and on the failure of the employer, it will be open
to the employee to enforce his claim. In a large organisation like the
Corporation with offices and bus-stations spread over the vast expanse
of the State, it may not always be possible, though it may be desirable,
for the competent authority to keep a watchful vigil and take prompt E
action for filing up the promotional post on occurring of the vacancy.
Officers in far off places may have to make temporary arrangements
for discharge of the duties attached to the higher posts which fall
vacant. They can only entrust the duties to an employee available
locally who may not have the requisite seniority or even the eligibility F
for being considered for promotion. It is not in the scheme of clause
(2) of the Annexure to the rules to convert such temporary arrangement
into a permanent one. The scheme of classification spells out clearly
the underlying intention that it is intended to apply to the entry-stage
and not to promotional post." [pp. 968, 969]
G
Under the relevant Standing Orders employees have been classified as
permanent, permanent seasonal, probationer, Bailis, apprentices and temporary.
A permanent employee has been defined to be an employee who has completed
six months satisfactory service in a clear vacancy. Standing Order, therefore,
relates to employment as such and not to category of posts in which a person H
82 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A is employed. There is a clear distinction between the nature of employment and
the hierarchy of the post in which the person is employed. The relevant
Standing Order categorises the nature of employment and it does not classify
the individual employees in different posts according to the hierarchy created
in a department. Thus, the employees have been classified according to the
nature of their employment as permanent, permanent seasonal, probationer,
B
Badlis, apprentices and temporary. Proviso to Standing Order does not apply
to promotions or regularisations in higher posts. It applies only to temporary
employees as defined in Standard Standing Order and on fulfilling the
requirement of the proviso such employees get the status of a permanent
employee. If the proviso is applied to promotions, it will affect the future of
I
c several other employees because promotions are dependant upon conditions of
service laid down for uniform application. If the permanent status is granted
to officiating employees without applying the conditions of service only on the
basis that such employees were required to work for six months or over in
officiating capacity which is only a stop gap arrangement made without following
D the due procedure for promotions, such a conclusion would be wholly unfair
and would allow those who were in a fortuitous circuqistance of being available
at a station or depot to be put in charge of a higher post without considering
the claims of other eligible employees. Hence, if any other conclusion is
reached, it would lead to disastrous consequences. Ther~fore, the line of
reasoning adopted by the High Court is perfectly in order.
E
However, Dr. T.N. Singh, learned Semor Advocate appearing for the
appellants, drew our attention to the decision of the High Court in V.K. Jain
& Am: v. Kamal Singh 17wusingh & Am:, (1978) MPLJ 664. In that case the
workman concerned was working as Supervisor for nearly 14 years but the
Management had not given him either the post o~ pay of Supervisor. Therefore,
F
the workman approached the labour court for directing the employer to classify
him as Supervisor and grant him pay accordingly. It was contended on behalf
of the Management that the workman was claiming promotion and, therefore,
the labour court had no jurisdiction, the function being within the jurisdiction
of the Management. It was held in that case that what the workman was asking
G for was not promotion but for appropriate classification under Rule 2 of the
Standing Orders and that case was covered by Item Nos. (i) and (vi), Schedule
II of the M.P. Industrial Employment (Standing Orders) Rules and the labour
court had jurisdiction. In that case, there was no detailed consideration of the
nature of the Standing Order 2 as has been done as closely as in K.K. Krishnan'.\·
H case (supra) and Narain Singh Rathore '.\'case (supra) wherein the entire scheme
D.P. TIWARI v. M.P. STATE ROAD TRPT. CORPN. [RAJENDRA BABU J.l 83
of the provision was considered. We have applied our mind to relevant provisions A
and the view of the High Court and we have also analysed the provisions vis-
a-vis the arguments of the learned counsel for the appellants. We think, the
view expressed by the High Court in this respect appears to be correct and calls
for no interference as on all aspects on which the learned counsel for the
appellants argued are covered by the passages quoted by us above. We think
B
that the basis upon which the conclusions have been reached is sound. We
further make it clear that for the periods for which the appellants had discharged
their duties or are discharging their duties attached to the higher post, they
should be paid emoluments as attached to that higher post.

Subject to what is stated above, these appeals deserve to be and are c
dismissed. No costs.

S.K.S. Appeals dismissed.