Chattisgarh High Court

Baratu Ram Pal vs State Of Chhattisgarh on 9 December, 2022

                                    1


                                                                 NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                        W.P.(S) No. 8529 of 2022
1.    Baratu Ram Pal S/o Vishram Aged About 63 Years R/o Village,
      Post And Tehsil - Nawagarh, District : Bemetara, Chhattisgarh
                                                        ---- Petitioners
                                Versus
1.    State Of Chhattisgarh Through - Secretary, Public Works
      Department, Mahanadi Bhawan, Naya Raipur, District : Raipur,
      Chhattisgarh
2.    Chief Engineer, Public Works Department, Nirman Bhwan,
      Sector - 19, Atal Nagar, Naya Raipur, District : Raipur,
      Chhattisgarh
3.    Executive Engineer, Public Works Department, Division -
      Bemetara, District : Bemetara, Chhattisgarh
4.    Collector, Bemetara,, District : Bemetara, Chhattisgarh
5.    Joint Director, Treasury, Accounts And Pension, Division - Durg,
      District : Durg, Chhattisgarh
                                                      ---- Respondents

For Petitioner : Mr. Sanjay Patel, Advocate For Respondents/State : Ms. Hamida Siddiqui, Dy.A.G.

Hon'ble Shri Justice Parth Prateem Sahu Order On Board 09/12/2022

1. Learned counsel for petitioner submits that petitioner joined

service as Contingency Paid Employee in the month of April,

1977 with respondents. Petitioner since the date of his initial

appointment i.e. April, 1977 continuously worked and pursuant to

circular issued by State Government dated 05.03.2008, he was

regularized in service vide order dated 26.08.2008. Petitioner

worked as regular employee, thereafter stood retired upon

attaining the age of superannuation on 31.12.2021.

2. After retirement, petitioner was paid retiral dues, however, while

calculating retiral dues under head for which petitioner is entitled

for, respondents have not considered the entire period of service,

which petitioner rendered in the respondents' department but

have considered only total period of service as 13 years 4

months for purpose of calculating pension which is a period after

regularization. As petitioner regularized in the establishment

considering his engagement as Contingency Paid Employee,

therefore, entire period of service are to be considered for retiral

dues and pensionary benefits i.e. since the date of his initial

appointment. In the service book maintained by respondents,

initial engagement of petitioner as Gangman is shown as April,

1977. Division Bench of this Court in Writ Appeal No.88 of 2019

considering the issue that contingency paid employee under Rule

4 (2) (b) of Work Charged and Contingency Paid Employees

Recruitment and Conditions of Service Rules, 1977 accorded

status of temporary employee immediately after completion of

five years of service. He also submits that identical issue came

up for consideration in Samaru Ram Sahu & Ors. Vs. State of

Chhattisgarh, W.P.(S) No. 5142 of 2020, which was allowed in

favour of petitioners therein and Writ Appeal No. 163 of 2021

filed by State challenging the order passed in writ petition was

dismissed vide order dated 24.06.2021. He also submits that

challenging the order passed in writ appeal, State has filed SLP

before Supreme Court, which was withdrawn and thereafter

Review Petition No. 133 of 2022 was filed, which also came to be

dismissed on 12.08.2022. Case of petitioner is squarely covered

with order passed in W.A. No.163 of 2021, therefore, petitioner is

also entitled for the same relief and service rendered by the

petitioner as daily wages employee prior to regularization is also

to be counted for the purpose of grant of retiral dues including

pensionary benefits.

3. Learned State counsel opposing submission of learned counsel

for petitioner would submit that the status of daily wages

employee is different than that of contingency paid employee,

and therefore, the petitioner has rightly been denied the benefit of

service, which he rendered as daily wage employee. However,

she do not dispute the submission of learned counsel for

petitioner with regard to consideration of identical issue in W.P.

(s) No. 5142 of 2020 and W.A. No. 163 of 2021 filed by State,

which was decided against them..

4. I heave heard learned counsel for parties and perused the

documents placed on record.

5. Grievance raised in this petition is that service, which petitioner

rendered from April, 1977 till 26.08.2008 has not been taken into

consideration for calculating pensionary benefits.

6. Perused Annexure P-2 which is an order dated 18.01.2022

passed in W.P.(S) No. 5142 of 2020 in case of Samaru Ram &

Ors. Vs. State of C.G., wherein writ Court observed as under :-

" 2. It is contended that the petitioners had joined

their services as contingency paid employee. Later on they were regularized by the department and superannuated from service on attaining the age of superannuation. It is stated that the service of the petitioners as contingency paid/temporary employee prior to the date of regularization has not been counted for retiremental dues, however, that should have been counted. It is further contended that this issue has been decided by the Division Bench of this Court in W.A. No.88 of 2019 and the following orders have been passed :-

"5. Petitioner's services during his posting in the Contingency Paid Establishment were governed under the Madhya Pradesh Irrigation Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1977. Under Rule 4 (2) (b) of the said Rules, a contingency paid employee is accorded temporary status immediately upon completion of 5 years service. On representation by the Employees Union, the State Government issued a circular on 02.03.2005, which reads as follows:

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6. In the above quoted circular, the State Government clearly directed that for counting the pensionable service, the period spent as temporary employee shall also be counted. The Division Bench of Madhya Pradesh High Court has also held in the matter of Shrikrishna Shrivastava vs State of M. P. and others, reported in (2003) 4 MPLJ 376, that period of temporary service rendered by a contingency paid employee shall be counted in the pensionable service.

7. In view of the circular issued by the State Government and the law laid down by the Division Bench of the M. P. High Court in Shrikrishna Shrivastava (supra), we are of the considered opinion that the petitioner's pensionable service should be counted from the date he completed 5 years service from the date of initial appointment, as immediately upon completion of 5 years service in the Contingency Paid Establishment, the petitioner had acquired temporary status under Rule 4 (2) (b) of the Rules, 1977. It is ordered accordingly. Consequently, it is directed that the respondents shall recalculate the petitioner's pensionable service in accordance with this order and pay him the entire consequential benefits within a period of 3 months from the date of receipt of the certified copy of the order. There shall be no order as to interest on the arrears.

8. The writ appeal is allowed in the above stated terms.

3. It is ordered accordingly. The judgment passed by the Division Bench in Writ Appeal No.88 of 2019 shall also be applicable in this case to the extent that the services rendered the petitioners as daily wage employee prior to regularization shall also be counted for the purpose of grant of retiral dues including pensionary benefit. The implementation of the same shall be after due verification of the service records of the petitioners.

4. The writ petition accordingly stands disposed of."

7. Order passed in W.P.(S) No.5142 of 2020 was challenged in writ

appeal before Division Bench of this Court and Division Bench

dismissed the writ appeal observing thus :-

"4. In this writ appeal, learned State counsel would place reliance on an interim order passed by this Court in WA No.102/2020 dated 05-02-2020, wherein a similar order passed by the single Bench has been stayed.

5. In the order dated 05-02-2020 passed in writ appeal No.102/2020, the petitioners therein were daily wages employee and therefore, on the said premises an interim order has been passed.

6. In the case at hand, the extract of service book of most of the writ petitioners would reveal that they were working in the Department of Public Works in the category of General Majdoor being part of "Permanent Gang". There is no dispute that members of "Permanent Gang" are engaged as contingency paid employee. Even though, the order of appointment has not been filed alongwith writ

petition, the fact that the writ petitioners were members of permanent gang is sufficient to establish their status as one of contingency paid employee.

7. Reliance placed by single Judge in the order passed in the WA No.88/2019 is in accordance with law and there is no scope of interference in this appeal.

8. It is accordingly dismissed."

8. Against the order of writ appeal, State has filed Special Leave

Petition bearing S.L.P. (C) No. 20477 of 2021 before Hon'ble

Supreme Court, which was withdrawn vide order dated

25.02.2022 with liberty to file review petition. Review Petition

No.133 of 2022 filed before Division Bench of this Court also

came to be dismissed vide order dated 12.08.2022.

9. In the aforementioned facts of the case, petitioner, who was

initially engaged as daily wage employee, and was working as

gang man as mentioned in service book and had subsequently

been regularized pursuant to circular issued by State

Government dated 05.03.2008, letter of State Government dated

02.03.2005 is also entitled for counting entire period of service,

which he rendered since 1977 till the date of retirement i.e.

31.12.2021 for the purpose of grant of pensionary benefits. It is

ordered accordingly. Implementation of order shall be made after

due verification of service record of petitioner.