1 2025:CGHC:1955 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 186 of 2013 Jai Prakash Singh Rajput S/o Balram Singh Rajput Aged About 33 Years R/o Barai Para, Tahsil and District Durg C.G. ... Appellant(s). versus 1 - Nagar Palika Nigam Durg Anors S/o Thru- Commissioner, Nagar Palika Nigam, Durg C.G., Chhattisgarh 2 - State Of Chhttisgarh Thru- Collector, Distt. Collector Durg C.G., District : Durg, Chhattisgarh 3 - Secretary Nagariya Prashashan And Vikas Vibhag, New Mantralaya, Raipur C.G., District : Raipur, Chhattisgarh ... Respondent(s). For Appellant(s) : Mr. Vinod Kumar Sharma, Advocate. For Respondent No.1 : Smt. A. Sandhya Rao, Advocate. For Res No.2 & 3/State : Mr. Ajit Singh, Adv with Mr. T. S. Sahu, Panel Lawyer. SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J. Judgment On Board 13.01.2025 1. This is a Second Appeal filed by the plaintiff under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) against the judgment and decree dated 17.09.2012 passed by the First Additional District Judge, Durg in Civil Appeal No.7-A/2000, which arises out of the judgment and decree dated 28.04.2000 passed by the Second Civil Judge, Class-II, Durg, in Civil Suit No.3-A/1998. Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.01.15 11:50:32 +0530 2 2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal filed by the plaintiff (appellant herein) and in consequence, upheld the judgment and decree passed by the trial Court, which had dismissed the plaintiff’s suit. 3. So the short question that arises for consideration in this appeal is whether this Second appeal involves any substantial question law within the meaning of Section 100 of the CPC and whether such appeal should be admitted for final hearing? 4. Henceforth, the parties shall be referred to as per their description before the Court below. 5. The appellant/plaintiff filed a suit seeking declaration that he is entitled to salary and service benefit as a regular employee w.e.f 14.01.1987, making averment inter alia that he has been appointed as Dailywager by respondent No.1 on 14.01.1987 and his services were regularized vide the order dated 26.04.1997 (Ex.P-4). However, being a Dailwager, he was paid salary @ Rs.1165/- per month, whereas, other similarly situated regular employees were paid salary of Rs.2000/- per month and they were also entitled to Earned Leave, Medical Leave, Provident Fund, Pension and gratuity. On such basis, he filed the civil suit on 07.05.1996. On the other hand, the written statement was filed by defendant/respondent No.1 denying the plaint averments. It has been stated that payment to the Dailywager employee was being determined by the Collector, Durg from time to time and after regularization he was given regular pay scale as per the instructions issued by the State Government. It was also stated that no proper notice has been served in 3 terms of Section 401 of the Chhattisgarh Municipal Corporation Act 1956 (for short “Act 1956”) though legal notice was sent on 11.04.1996 and the same was received by respondent No.1 on 12.04.1996. It was also averred that as suit has been filed on 07.05.1996, the suit itself is premature. 6. On the basis of pleadings made by the parties, learned trial Court framed as many as two issues. After evaluating the evidence of the plaintiff (PW-1) and defendant witness Pannaram (DW-1) and other documentary evidence, the trial Court rejected the claim of the plaintiff holding that he is not entitled to pay scale from retrospective date. 7. Against the said findings, initially, the appellant/plaintiff preferred a First Appeal, however, the First Appellate Court dismissed the appeal vide the judgment and decree dated 24.02.2003 on technical ground that such nature of suit is not maintainable in view of the provisions contained in State Administrative Tribunals Act 1985. Thereafter, the plaintiff preferred Second Appeal No.261/2003 before this Court, whereby, vide the judgment dated 12.06.2012, the appeal was allowed and the judgment and decree passed by the First Appellate Court was set-aside holding that in absence of any notification issued by the State Government under Section 15 (2) of the Act, 1985 the cognizance of service matter of employees of local self government by the Civil Court are neither expressly nor impliedly barred and the matter was remitted to the First Appellate Court to decide the first appeal on its own merits. 8. Thereafter, the First Appellate Court passed the impugned judgment on 17.09.2012 and held that the claim of the plaintiff is not acceptable as no 4 proper notice has been served in terms of Section 401 of the Act 1956. Ultimately, the first appeal was dismissed affirming the judgment and decree passed by the trial Court. It is this judgment and decree passed by the First Appellate Court, which is impugned in the instant Second Appeal. 9. Learned counsel for the appellants would submit that the trial Court as well as the First Appellate Court have committed an error by not appreciating the evidence in its proper perspective so the finding recorded by both the Courts below is perverse. However, he fairly admits that no proper notice was served to the defendant in terms of Section 401 of the Act 1956, according to which, expiration of one month next after notice in writing to the Chief Corporation Officer is required. He also submits that the suit has been filed on 07.05.1996 and the legal notice was sent on 11.04.1996 i.e. prior to one month. He also submits that the plaintiff was initially appointed as Dailywager on 14.01.1987 and his services were regularized on 26.04.1997. He would submit that the plaintiff was not paid equal salary as compared to the other regular employees, therefore, in view of the principle of ‘equal pay for equal work’ he is entitled to such service benefits from retrospective date. Hence, he prays to set-aside the findings recorded by both the Courts below. 10. Heard learned counsel for the parties and perused the record with utmost circumspection. 11. There is a concurrent finding of facts recorded by the trial Court as well as the Appellate Court that the appellant/plaintiff has failed to establish 5 that he was served proper notice before filing of the civil suit and that he is entitled to the service benefit like that of the regular employee from the date of initial appointment i.e. 14.01.1987 though he was regularized in service vide the order dated 26.04.1997 (Ex.P-4). 12. It is well settled that in any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. It is also well establish that a person cannot claim retrospective regularization of seniority in service from a date when an employee is not even borne in regular service/cadre. 13. In the matter of Rameshwar Pyasi Vs. State of MP [2023 SCC OnLine MP 6924] following was observed in Paras 16 to 18:- “16. Thus, petitioners have failed to prove any of the grounds either to claim arrears or seniority. Infact, the Supreme Court in the case of Ram Naresh Rawat Vs. Ashwini Ray and others (2017) 3 SCC 436 has sufficiently clarified the difference between the grant of permanent status and regularization and has held that daily wagers appointed without following the due selection procedure and their appointments made were not against regular vacancies but they were classified as permanent employees pursuant to orders passed by the Labour Court are only entitled to pay scale from the date specified in award but not to any increments. 17. They were only entitled to receive minimum pay scale with no increments. Only regularization in service would entail grant of increment. The permanent classification is not akin to regularization. 18. Thus, in the light of the said judgment of the Supreme Court, since there cannot be any claim for seniority admissible to a daily wager who had yet not become member of the cadre, claim of the petitioners for arrears of pay and seniority deserves to be rejected and is hereby rejected.” 14. In view of the above, it is explicit that a regular employee has more responsibilities and accountability as compare to a dailwage employee. Moreover, services of dailywage employee can be terminated at any 6 stage after granting certain compensation, if any, in accordance with law. Hence, the claim of the plaintiff for grant of benefit equal to a regular employee from retrospective effect, is not acceptable. 15. In view of the aforesaid discussion, this Court reaches to the conclusion that there is no merit in the appeal, involving no question of law much less substantial question of law within the meaning of Section 100 of the CPC. The judgment and decree passed by both the two Courts below appear to be just, proper and legal. The findings recorded by both the Courts are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they does not call for any interference. 16. Consequently, the Second Appeal fails and is hereby dismissed in limine resulting in upholding of the judgment and decree of both the Courts below. 17. No order as to cost(s). Sd/- (Deepak Kumar Tiwari) Judge Ajay