Krishna Nand Dubey vs The State Of Madhya Pradesh
2021 Latest Caselaw 4928 MP

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                                   The High Court Of Madhya Pradesh
                                             Writ Petition No.2820 of 2018
                                   (Krishna Nand Dubey Vs. The State of Madhya Pradesh)

                      Jabalpur, Dated :02.09.2021
                            Heard Through Video Conferencing.

                            Shri Ajeet Singh, learned counsel for the petitioner.

                            Shri    Kamlesh      Dwivedi,     learned     panel    lawyer     for   the

                      respondents/State.

Petition under Article 226 of the Constitution of India has been

filed seeking the following relief(s) :-

"(i) It is, therefore, prayed that this Hon'ble Court may

kindly be pleased to direct the respondents give all the retiral

benefit of the petitioner by counting his previous service

w.e.f. 28.06.1978 with all service benefits including higher

pay scale with arrears and interest within the stipulated

period.

(ii) This Hon'ble Court be further pleased to pass any

such other orders as this Hon'ble Court may deem fit under

the circumstances of the case."

It is submitted that the petitioner was initially appointed on the post

of Work Charged Contingency vide order dated 28.06.1978. After the

retirement of the petitioner the respondents have given the retiral benefits

of the petitioner treating the petitioner as newly appointed w.e.f.

16.05.1997, whereas GTIS payment of the petitioner was given by the

respondents by counting his previous services from 1978. It is submitted

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that the counting of past services rendered by employee if his initial

appointment was under Work Charged Contingency is no more res

integra and has been settled by the Hon'ble Supreme Court in the case of

Prem Singh Vs. State of Uttar Pradesh and others reported in (2019)

10 SCC 516. He has already submitted a detailed representation to the

respondent/Authorities for consideration of his case for grant of post

retiral benefits counting his previous services.

An innocuous prayer is made to direct the respondents to consider

the representation and decide the same considering the judgment passed

by the Hon'ble Supreme Court in the aforesaid case within a stipulated

time frame.

Counsel appearing for the respondents/State could not dispute the

fact that the controversy has been put to rest by the Hon'ble Supreme

Court in the case of Prem Singh (supra). In such circumstances, he has

no objection in getting the representation decided at an early date.

Heard the learned counsel for the parties and perused the record.

The Hon'ble Supreme Court in the case of Prem Singh (supra) has

held as under :-

"The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. Once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. An

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impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. Consequently, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years and some of them have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in Umadevi (3), (2006) 4 SCC 1. The services of the employees who had put in 10 years or more service is directed to be treated as regular. However, clarified that they shall not be entitled to claim any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work- charged establishment shall be counted as qualifying service for purpose of pension. The arrears of pension shall be confined to three years only before the date of the order."

This Court in the case of Writ Petition No.7035/2016 order dated

18.09.2019 has considered the similar controversy placing reliance on the

judgment passed by Division Bench in the case of Samim Begam vs.

State of M.P. and others, 2006 (4) MPLJ 112 and in the case of

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Shrikrishna Shrivastava v. State of M.P. and others reported in 2003

(4) MPLJ 376 has held as under :-

"Division Bench of this High Court in the case of Shrikrishna Shrivastava Vs. State of M.P. and others [2003 (4) MPLJ 376] observed :-

"5- As per amendment in the rules known as Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979, in Rule 6(3) it is provided that if a temporary employee who has served uninterruptedly and is regularised on a regular pensionable post, his services after 1st January 1974, which shall not be less than six years, shall be counted for pension and not from the date when he was regularised. In the aforesaid pension rules of 1979, Rule 6 relates to commencement of qualifying service. It is provided that for calculating qualifying service of a permanent employee, who retires as such, the service rendered w.e.f. 1st January, 1959 onwards shall be counted. It is further provided that on absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 onwards shall be counted for pension as if such service was rendered in a regular post and thereafter sub-rule 3 was introduced vide notification dated 30th January 1996 and it is provided that any temporary employee, who has been served uninterruptedly and on his absorption on regular pensionable post after 1st January 1974 the period shall be counted towards pension.

6- Considering Rule 4 of the Madhya Pradesh Irrigation Department Work charged and Contingency Paid Employees Recruitment and Conditions Rules. It is clear that the petitioner was eligible to be regularised on the post on completion of five years service as a contingency paid employee. Therefore, we hold that for the purposes of pension his period of service shall be counted from 1.12.1982 onwards till the date of his retirement. Pension is allowed. Respondents are directed to calculate the pension of petitioner treating him to be in service on the pensionable post w.e.f. 1.12.1982."

Similarly in Samim Begam Vs. State of M.P. and others, 2006 (4) MPLJ 112, it has been held :

"7- In view of the Rule 6(2) of the Rules of 1979, when once a person is absorbed in a regular pensionable

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post,the service rendered in work-charged establishment, has to be counted as qualifying service. This Court in series or cases has held that the employee who was in the work-charged establishment will fall in the definition of Work-charged Contingency Paid Employee and his case will be covered by The M.P. Work-Charged Contingency Paid Employee Rules, 1979 and, therefore, he is entitled for pension, gratuity as per Rules. This Court in W.P. No. 1569/94, M.P. Dubey vs. M.P.E.B. Directed the period ofwork-charged to be counted as pensionable period under the Rule 42 of the Rules of 1976. The Division Bench affirmed the said finding in an L.P.A. No. 229/98 on 20.11.1998. The decision of the Division Bench was affirmed by the Apex Court."

Though it is urged on behalf of the State, that contrary view is taken in State of Madhya Pradesh Vs. Ramsingh and ors. W.P.No.1273/2000 decided in 18.7.05 relying whereon a Single Bench in Smt. Rahisha Begum v. State of M.P. and ors: 2007 (4) MPHT 595, has declined the claim for pension under the similar set of facts as the present one.

In Ramsingh and another (Supra), it was observed: "5- Contrary to this learned Dy. Government Advocate has submitted that the husband of the petitioner was engaged on daily wage basis in the year 1980 and he was regularised on the post of driver in work charged and contingency paid establishment vide order dated 31.12.98, hence the petitioner is not entitled for gratuity and family pension because the husband of the petitioner had not completed qualifying service as per rules."

When the judgment in Ramsingh and another (supra) is examined in juxtaposition with the judgment rendered in Shrikrishna Shrivastava (supra), it is observed that in the case of Shrikrishna Shrivastava, the Division Bench took into consideration sub-rule 3 of Rule 6 of the Rules of 1979, and the effect thereof, and after analysing the same came to hold that the services rendered by a daily wager prior to his appointment in regular work charged establishment, if the same is not less than 6 years, when rendered w.e.f. 1.1.74 onwards, is to be counted for the purpose of pension.

In view whereof, the respondents are not justified in denying the petitioner the benefit of the service rendered by him prior to his appointment in regular work charged establishment, which was admittedly more than 6 years.

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ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.07
16:54:55 IST

In the result the petition is allowed. The respondents are directed to count the service rendered by the petitioner as daily wager prior to his appointment in regular work charged establishment and grant the pension as per provisions contained in the Rules of 1979."

In such circumstances, when the controversy is no more res

integra, this Court deems it appropriate to dispose of the writ petition

with a direction to the petitioner to submit a detailed representation along

with the copy of the judgments to the competent authority within a period

of ten days and in case such a representation is submitted the competent

Authority is directed to consider and decide the representation taking into

consideration the judgment passed by the Supreme Court as well as the

High Court in the aforesaid cases and after giving audience to the

petitioner may pass a self-contained speaking order. The aforesaid

exercises be completed within a period of three months from the date of

receipt of certified copy of this order. If the petitioner is found entitled for

the benefits as claimed by him then the arrears be calculated and the

payments be made to the petitioner within a further period of three

months.

With the aforesaid observations, the petition stands disposed of.

(Vishal Mishra) Judge

AM.

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Verified

Digitally signed by
ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2021.09.07
16:54:55 IST