Madhya Pradesh High Court

Govind Prasad vs The State Of Madhya Pradesh on 2 March, 2022

Author: Sanjay Dwivedi

      HIGH COURT OF MADHYA PRADESH, JABALPUR

                  Writ Petition No.16152/2010


Govind Prasad, Aged 63 years, S/o. Late
Shri Bhagwat Prasad Chaturvedi,
Occupation Retired Forest Guard, O/o
Deputy Director, Buffer Zone, Forest Circle,
Kanha Tiger Reserve, Mandla M.P.
R/o. MIG Deluxe B-267, Katara Hills, Bagh
Mugalia Extension, Bhopal (M.P.)
Pin - 462043
                                                ..PETITIONER


                              Versus


1. The State of Madhya Pradesh,
through the Principal Secretary to Govt.,
M.P. Forest Department, Ministry,
Vallabh Bahwan, Bhopal.
2. The Principal, Chief Conservator of
Forest, M.P. Satpuda Bhawan, Bhopal
3. The Field Director, Kanha Tiger Reserve Forest,
M.P. Mandla.
4. The Deputy Director, Buffer Zone Forest
Circle, Kanha Tiger Reserve, Mandla M.P.

                                               ...RESPONDENTS

Date of Order                 02.03.2022
Bench Constituted             Single Bench
Order delivered by            Hon'ble Shri Justice Sanjay
                              Dwivedi
Whether approved for          No
reporting

Name of counsel for parties For Petitioner : Shri S.P. Singh, Advocate.

For Respondents : Smt Anchan Pandey, Panel Lawyer.

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W.P.No.16152/2010

Reserved on : 24.11.2021 Delivered on : 02.03.2022

(O R D E R) (02.03.2022)

This is an admitted petition. Although while

reserving the matter for orders on 24.11.2021, this Court had

directed the either party to furnish a document vis-a-vis initial

appointment of the petitioner to crystalize the actual status of

the petitioner enabling this Court to ponder over the issue,

but no such document has been filed.

2. By way of instant petition filed under Article 226 of

the Constitution of India, the petitioner has claimed the

following relief(s):-

"(A) That the Hon'ble Court may be pleased to command the Respondents to count the services of the petitioner from 01.05.1983 to 16.07.1999 (as contingency paid wireless operator) for 16 years as qualifying service for the purpose of pension in combination with regular services from 17.07.1999 to 31.07.2007 so that entire service period which comes to 24 years would be reckoned for calculation of pension.

(B) That the Hon'ble Court may also be pleased to declare the petitioner entitled for interest @ 8% p.a. as per State Govt. Policy (Annex P-11) on the culpably delayed amount of pension / gratuity w.e.f. 01.08.2007 to the date of its actual payment in the larger interest of justice.

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W.P.No.16152/2010

(C) That the Petitioner is a poor class III low paid employee and has been miserably suffered in the hands of Respondents for long period without any pension for absolutely no fault and hence for violation of his fundamental right under Article 21 of the Constitution, the Hon'ble Court may be pleased to grant compensation of Rs.50,000/- in the larger interest of justice. (D) Any other relief, order to which this Hon'ble Court deems fit, just, proper, expedient and equitable in the facts circumstances of the case may also kindly be granted in the interest of justice along with the cost of the petition."

3. Succinctly, the facts of the case are that initially

the petitioner was engaged as a contingency paid employee

(Wireless Operator) w.e.f. 01.05.1983 and rendered

uninterrupted services upto 16.07.1999. By order dated

09.07.1999 (Annexure-P/5), the services of the petitioner

were regularised on a pay-scale of Rs.2750-4400/-. In

pursuance to the order of regularisation, the petitioner

continued in service till 31.07.2007 and got retired on

attaining the age of 60 years by order dated 05.07.2007

(Annexure-P/6).

The petitioner thereafter claimed his pensionary

benefit taking note of his services rendered by him w.e.f.

01.05.1983 to 16.07.1999 claiming himself to be the work-

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W.P.No.16152/2010

charged contingency employee, but his claim was turned

down by the respondents by order dated 04.04.2008 thereby

communicating to the petitioner that the services rendered

by him were not as work-charged contingency employee but

as a muster-roll employee on daily wages basis and as such

the services rendered by him w.e.f. 01.05.1983 to

16.07.1999 cannot be counted as qualifying service even for

the purpose of pensionary benefits. Aggrieved thereof, the

petitioner made representations (Annexure-P/8 and P/9) but

of no avail.

The respondents have filed their return stating

therein that the petitioner was not a work-charged

contingency employee, but he was working as a daily wager

and was engaged as such on muster-roll, although was

regularised on the post of Forest Guard vide order dated

09.07.1999. The respondents in their return have specifically

denied that the petitioner was ever engaged as contingency

paid/work-charged employee in the respondent-department

and therefore his services w.e.f. 01.05.1983 to 16.07.1999

cannot be counted for pensionary purpose.

The petitioner thereafter filed a rejoinder

enclosing a list of employees (Wireless Attendants) in which

the petitioner's name is also included. Further, he has also

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W.P.No.16152/2010

filed a copy of the order of Collector Neemuch passed on

03.11.1999 wherein the services of one of the employees

namely Shailendra Kumar Vyas, who rendered the services

in the office of Land Conservation Forest Circle Mandsaur,

directed to be counted for the purpose of pensionary

benefits. Taking strength of the aforesaid order, the petitioner

is also claiming that his services should also be counted for

the purpose of pensionary benefits as he too was engaged

as Wireless Attendant and rendered services in work-

charged contingency establishment.

4. The learned counsel for the petitioner during the

course of argument placed reliance upon an order dated

15.03.2019 passed in W.P.No.9988/2017 (Vishwanath

Prasad Tiwari v. State of Madhya Pradesh & Others) by

which this Court had allowed the writ petition directing the

authorities to count the services rendered by the employee

in work-charged contingency establishment and accordingly,

after refixing the pension, pay him retiral dues.

5. After hearing the rival contentions of the learned

counsel for the parties and on perusal of the record, the only

issue which emerges for adjudication is as to whether the

services rendered by the petitioner w.e.f. 01.05.1983 to

16.07.1999 were under the work-charged contingency

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W.P.No.16152/2010

establishment or it were on daily wages engaged on muster

roll. Secondly, whether such services can be counted for the

purpose of pensionary benefit or not.

6. The petitioner although claiming himself to be

employee engaged in work-charged contingency

establishment but he failed to establish the fact by producing

any relatable document to substantiate that he was a work-

charged contingency employee w.e.f. 01.05.1983 to

16.07.1999 and therefore that period of service can be

counted after his regularisation for the purpose of pensionary

benefit.

7. A specific objection has been raised by the

respondents that the petitioner was a daily wager and was

not working under the work-charged contingency

establishment and as such cannot be treated to be work-

charged contingency employee, therefore, his services

cannot be counted for the purpose of pensionsary benefits.

However, the petitioner neither filed any document nor even

filed any appointment order or any communication wherein

he has ever been treated to be an employee of work-

charged contingency establishment. Therefore, the stand

taken by the respondents appears infallible that the

petitioner being a daily wager though regularised in the year

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W.P.No.16152/2010

1999, but there is no provision for counting the services for

the purpose of granting pensionary benefit, rendered as daily

wagers prior to absorbing the employee in regular

establishment. In the circumstance, the stand taken by the

petitioner that his services rendered in workcharged

contingency establishment should be added to the services

rendered by him in a regular establishment is seemingly

precarious as ill-founded. Adverting to the document filed

alongwith the rejoinder, it does not reveal that the person to

whom the benefit has been granted by virtue of order of

Collector was similarly situated and moreso, there is nothing

available on record to indicate as to in which establishment

Shailendra Kumar Vyas had rendered services, which

occasioned the Collector to direct that his services should be

counted with the services rendered in the regular

establishment so as to grant him the pensionary benefit.

Inevitably, the petitioner cannot claim parity with Shailendra

Kumar Vyas in absence of any specific order indicating that

the petitioner and Shailendra Kumar Vyas were almost

sailing on the same boat or he was similarly situated

employee in any manner.

8. The judgment on which the petitioner has placed

reliance lays down a law relying upon the judgment rendered

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W.P.No.16152/2010

in the case of Gopi Pillai v. M.P.E.B., Jabalpur & Another

reported in 2002(2) MPLJ 278, according to which, the

services rendered in work-charged contingency have to be

counted for the purpose of granting the pensionary benefit

by adding the said services with the services rendered by

the employee in regular establishment.

9. The learned counsel for the petitioner has failed

to show as to under which provision of law, the services of a

daily wager can be counted for the purpose of pensionary

benefit, if lateron he has been regularised and absorbed in

regular establishment.

10. The identical issue has also been considered by

the Coordinate Bench at Indore in W.P.No.1160/2015 (S)

(Heeralal v. The State of Madhya Pradesh) and other

identical petitions, in which, the Court after taking note of

earlier judgments of the Division Bench and other

Coordinate Bench, finally observed as under;-

"20- The petitioner's case is not at all covered under the Rules of 1979. He is a Daily Wager and by no stretch of imagination is entitled for pensionary dues in light of the judgment delivered in the case of Mamuta Shukla (Supra).

21- The Recruitment Rules governing the field known as Madhya Pradesh Public Works Department Workcharged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976

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W.P.No.16152/2010

provides for method of recruitment and promotion. It provides for maintenance of service record in respect of all employees appointed under the Rules of 1976. The petitioner is certainly not a member of service in question and his initial recruitment itself is not in accordance with the Rules of 1976 and therefore, in the considered opinion of this Court, the question of grant of pension to the petitioner does not arise.

22- It has also been argued that identically placed persons by virtue of orders passed by this Court are receiving pension and a judgment is placed on record delivered in the case of Lalsingh S/o Gangaram passed in Writ Petition No.11238/2012 (S) on 10/12/2013.

23- This Court has carefully gone through the judgment delivered in the case of Lalsingh S/o Gangaram and the fact remains that the judgment delivered in the case of Mamta Shukla (Supra) which is by Full Bench has not been considered at all and therefore, if a person is receiving pension on account of some order, it does not create any right in favour of the petitioner specially when the law has been crystallized in the case of Mamta Shukla (Supra). The petitioner cannot claim negative equality in the matter of grant of pension. The petitioner has to support his claim on the basis of statutory provisions and the judgments delivered from time to time. The statutory provisions governing the field does not support the petitioner at all and the judgment delivered in the case of Mamta Shukla (Supra) also does not entitled the petitioner for grant of pensionary dues.

24- In light of the aforesaid, present writ petition along with all other connected writ petitions are dismissed."

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11. Under such circumstances, in absence of any

provisions under the service jurisprudence and also in

absence of any documentary evidence showing that he was

a work-charged contingency employee but not a daily wager

and therefore services should have been counted by adding

the service of regular services rendered by him for the

purpose of pensionary benefit, the specific stand of the

respondents that the petitioner was a daily wager and not a

work-charged contingency establishment, is impeccable.

12. In view of the above discussion, it is apparent that

the petitioner has completely failed to substantiate his claim

that he was appointed under the work-charged contingency