Duwarka Prasad Patel vs The State Of Madhya Pradesh
2022 Latest Caselaw 5226 MP

                                                          1
                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                        BEFORE
                                          HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                 ON THE 11th OF APRIL, 2022

                                           WRIT PETITION No. 5307 of 2021

                              Between:-
                              DUWARKA PRASAD PATEL S/O LATE DORI LAL
                              PATEL , AGED ABOUT 75 YEARS, OCCUPATION:
                              RETIRED AMIN UNSKILLED FROM THE O/O
                              EXECUTIVE ENGINEER RANI AVANTI BAI SAGAR
                              PARIYOJNA    GOTEGAON     DIVSION    NO.2
                              NARSINGHPUR GRAM POST NIGRI DISTT.
                              JABALPUR (MADHYA PRADESH)

                                                                                         .....PETITIONER
                              (BY SHRI SANJOY ROY, COUNSEL FOR THE PETITIONER)

                              AND

                      1.      THE STATE OF MADHYA PRADESH THR.
                              PRINCIPAL SECRETARY WATER RESOURCES
                              DEPARTMENT VALLABH BHAWAN BHOPAL (M.P.)
                              (MADHYA PRADESH)

                      2.      ENGINEER IN CHIEF WATER RESOURCES
                              DEPARTMENT OLD NARMADA BHAWAN, TULSI
                              NAGAR BHOPAL (MADHYA PRADESH)

                      3.      CHIEF ENGINEER RANI AWANTI BAI LODHI
                              SAGAR, PARIYOJANA BARGI HILLS , JABALPUR
                              (MADHYA PRADESH)

                      4.      THE EXECUTIVE ENGINEER RANI AWANTI BAI
                              LODHI SAGAR PARIYOJNA DIVISION NO. 2,
                              GOTEGAON, DISTT, NARSINGHPUR (MADHYA
                              PRADESH)

                      5.      THE       JOINT      DIRECTOR TREASURY AND
                              A C C O U N TS DISTT. NARSINGHPUR (MADHYA
                              PRADESH)

                                                                                      .....RESPONDENTS
                              (BY SHRI ATUL DWIVEDI, PANEL LAWYER)

                            T h is petition coming on for admission this day, the court passed the
                      following:
                                                           ORDER

This writ petition is filed by the petitioner claiming that he was working as a daily wager employee since 1975. His services were regularized vide order dated Signature SAN Not 21/04/1999 Annexure P-1 on the post of 'Amin' in the pay scale of Rs. 2610-60- Verified

Digitally signed by 3150-65-3540/- in the work charge and contingency paid establishment. VAIBHAV YEOLEKAR Date: 2022.04.13 19:22:35 IST

Petitioner's contention is that in terms of the provisions contained in M.P. Work Charge and Contingency paid employees Pension Rules 1979, uninterrupted service of the petitioner prior to his regularization is to be computed for qualifying service for the purposes of pension.

It is submitted that under similar facts and circumstances, a coordinate Bench of this court in the case of Chandrashekhar Vs. State of M.P. and others decided in W.P. No. 3876/2006 on 27/08/2010 has allowed the writ petition and granted the benefit.

4."Regulation and amount of pension - Notwithstanding anything contained in rules 5 and 6 of the payment of pension and gratuity of permanent employees shall be regulated as under, namely :-

(1) the Madhya Pradesh New Pension Rules, 1976 except rule 5 thereof, shall apply to all permanent employees who have retired on or

after the 1st January 1974 but before the 1st June 1976.

(2) The Madhya Pradesh Civil Services (Pension) Rules, 1976 except rules 47 and 48 thereof, as amended from time to time, shall apply to all permanent employees who have retired on or after the 1st 1976.

4A - Notwithstanding anything contained in rule 4 the family of a permanent employee, who dies while in service or after retirement on pension on or after the 1st April 1981 shall be entitled to family pension at the rate of 30% of his/her pay drawn at the time of death/retirement subject to minimum, of Rs. 40/- per month and maximum of Rs. 100/- per month subject to other conditions of Rule 47 of Madhya Pradesh Civil Services (Pension) Rules, 1976 except sub-rule (3) of the said Rules.

Rule 6 of the Rules of 1979 stipulates:

6 - Commencement of qualifying service.- (1) Subject to the provisions of Chapter III of the Madhya Pradesh Civil Services (Pension) Rules, 1976 or section IV of the Madhya Pradesh New Pension Rules, 1951 as the case may be, for calculating qualifying service of a permanent employee who retires as such, the service

rendered with effect from the 1st January, 1959 onwards shall be counted.

(2) On absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 onward shall be counted for pension as if such service was rendered in a regular post. (3) On absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is not less than six years shall be counted for pension as if such service was rendered in a regular post.

"Permanent Employee" the expression which finds mention in Rule 4 and 6 is as defined under Rule 2 (c):

"Permanent employee" means a contingency paid employee or a work charged employee who has completed fifteen years of service or more on or after the 1st January, 1974.

Division Bench of this High Court in the case of Shrikrishna Shrivastava v. State of M.P. and ors (supra) 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 Depar tment W o r k 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 i s 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 ors: 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 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 of work-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."

Learned Panel Lawyer in his turn submits that petitioner is not entitled to pension as he has not put in ten years of qualifying service. However, when judgment rendered by this High Court in the case of Samim Begum Vs. State of M.P. & others 2006 (4) M.P.L.J. 112 is taken into consideration which has also considered the law laid down in the case of M.P. Dubey Vs. M.P.E.B. so also the judgment of Division Bench in the case of Shrikrishna Shrivastava Vs. State of M.P. and others 2003 (4) M.P.L.J. 376 , then the view of the Division Benches that sub-rule 3 of Rule 6 of the Rules of 1979 that services rendered by the daily wager prior to his retirement in the regular work charge establishment, if the same is not less than six years when rendered w.e.f. 1/11/1974 onwards, is to be counted for the purpose of pension.

Since, petitioner had put in more than 24 years service prior to issuance of order of regularization on 21/04/1999, respondents are not justified in

denying services of the petitioner rendered by him prior to his appointment in the regular work charge establishment which was admittedly more than six years.

In the result, the petition is allowed. Respondents are directed to count the service rendered by the petitioner as a daily wager prior to his appointment in the regular work charge establishment and grant him pension as per the provisions contained in the Rules of 1979.

In above terms, the petition is allowed and disposed of.

(VIVEK AGARWAL) JUDGE vy