The State Of Madhya Pradesh vs Roop Singh Vishwakarma
2021 Latest Caselaw 6969 MP

                                            1

THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                   AT JABALPUR

                             (DIVISION BENCH)
                                W.A.No.98 /2019

      State of Madhya Pradesh and others                         Appellant
                                      Versus

     Roop Singh Vishwakarma & another                            ..Respondents
      ---------------------------------------------------------------------------------
      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
      ---------------------------------------------------------------------------------
      Presence :
              Shri Darshan Soni, Government Advocate for the appellants
              Shri Manoj Chansoriya, learned counsel for the respondent
              no.1.
              Shri Y,.M.Tiwari, learned counsel for the respondent no.2
      ---------------------------------------------------------------------------------

                               JUDGMENT

(28/10/2021)

Per : V.K. Shukla, J.

The present intra court appeal has been filed under Section 2(1) of

Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal)

Adhiniyam, 2005, being aggrieved by the order dated 21-08-2018 passed

by the learned Single Judge in W.P. No.16536/2015 whereby the learned

Single Judge has allowed the writ petition filed by the respondent no.1.

and has directed for computation of the services rendered by the

respondent no.1 as employee of the respondent no.2 towards qualifying

service for the purpose of grant of pension under the M.P. Civil Services

(Pension) Rules, 1976 ( hereinafter referred to as 'Rules, 1976') on the

ground that the respondent no.1 had duly obtained prior permission of

his earlier employer (respondent no.2) prior to being selected and

appointed in the services of the appellants.

2. The case putforth by the respondent no.1/petitioner is that he was

appointed as LDC in the office of respondent no.5/Housing Board on

24-01-1974. He was selected for the post of Sub Inspector in Police

Department and therefore, resigned from the post of LDC from

respondent no.5/department on 27-03-1982. His resignation was accepted

and he was relieved on 27-03-1982. He was asked to join on 02-04-

1982 for training in the Police Training College, Sagar. After successfully

completing the training, he was appointed as Sub Inspector vide

appointment order dated 28-05-1983. The respondent no.1/petitioner has

retired from service on 31-03-2014 on attaining the age of

superannuation. However, while counting his service for pensionary

claim, the period from 24-01-1974 to 27-03-1982 was not counted. The

respondent no.1/petitioner submitted a representation in this regard to

respondent no.4/Superintendent of Police, Hoshangabad who in response

to his application requested the respondent no.5/Housing Board to make

available the service record of the respondent no.1/petitioner. The

respondent no.5 informed the respondent no.4 that the said record is not

available. The respondent no.4, therefore, taking into consideration only

the period from 02-04-1982 to 31-03-2014, settled the pensionary claim

of the respondent no.1/petitioner.

3. It is contended by the respondent no.1/petitioner that despite

repeated representations, the retiral dues for the services rendered with

the respondent no.5 have not been released which had led to the

respondent no.1/petitioner getting lesser pension. The respondent

no.1/petitioner has placed reliance on Single Bench decisions of this

court in W.P.No.4919/2003 (Ram Jatan Singh Vs. State of M.P. and

others) dated 27-11-2003 and also W.P.No.9440/2014 ( O.P.Dubey Vs.

State of M.P. and others) dated 20-11-2014.

4. The appellants/respondents submitted that the respondent no.1/

petitioner has not sought prior permission from the previous employer

for participating in the selection process as required under Rule 26 of the

M.P. Civil Services Pension Rules, 1976, hence he is not entitled to any

relief. Reliance is placed on a Single Bench decision of this court in

W.P.No.08/20121 (Dr.Rewa Prasad Dwivedi Vs. State of M.P. and

others) dated 21-06-2018.

5. The learned Single Judge has considered the issue regarding not

getting prior permission from earlier employer/department and held that

the said issue has already been considered by the Single Bench in the

case of O.P.Dubey(supra). It is further held that in the present case 'no

objection' was granted to the respondent no.1/petitioner by the previous

department/Housing Board vide office order dated 27-03-1982, whereby

he was relieved from the services of the Housing Board to join his

duties, in the Police Department. The said relieving of the respondent

no.1/petitioner dated 27-03-1982 has to be considered as 'No

Objection" of the Housing Board in the matter of taking another

appointment by the respondent no.1/petitioner. The appointment order

dated 28-05-1983 categorically mentions that if any employee, earlier

serving in another department has been selected in the present

department, his earlier services in the previous department shall be

counted for the purpose of pension.

6. In view of the aforesaid, the learned Single Judge held that the

respondent no.1/petitioner is entitled for counting of his services rendered

with the respondent no.5/Housing Board towards his pensionary

benefits.

7. The learned counsel for the appellants argued that the M.P.

Housing Board is different entity and his services were non-pensionable

with the M.P. Housing Board, therefore, the respondent no.1/petitioner is

not entitled to count his previous service rendered with the M.P.

Housing Board for the purpose of pension. The said ground was not

raised before the learned Single Judge, therefore, the appellants cannot

be permitted to raise the aforesaid ground for the first time in the

present intra court appeal.

8. In view of the aforesaid, we do not find any illegality in the order

passed by the learned Single Judge warranting any interference in the

present intra court appeal.

9. Accordingly, the writ appeal is dismissed. No order as to costs.

Pending interlocutory application(s), if any, is also disposed of.

      (RAVI MALIMATH)                     (VIJAY KUMAR SHUKLA)
        CHIEF JUSTICE                             JUDGE


hsp
      Digitally signed
      by HARSAHAI
      PATERIYA
      Date: 2021.10.29
      17:26:54 +05'30'