Lalit Kumar Shukla vs The State Of Madhya Pradesh
2023 Latest Caselaw 13795 MP

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                           IN    THE    HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VISHAL MISHRA
                                           ON THE 23 rd OF AUGUST, 2023
                                          WRIT PETITION No. 29885 of 2018

                          BETWEEN:-
                          LALIT KUMAR SHUKLA S/O LATE SHRI MAHESH
                          PRASAD    SHUKLA,  AGED    ABOUT  62 YEARS,
                          OCCUPATION: RETD,. ASSTT. LINEMAN FROM THE
                          OFFICE OF EXECUTIVE ENGINEER M.P. PURVA
                          KSHETRA VIDYUT VITRAN COMPANY CITY DIVISION
                          OLD GALLA MANDIR AMAHIYA REWA DISTT. REWA
                          M.P. (MADHYA PRADESH)

                                                                             .....PETITIONER
                          (BY SHRI AJEET SINGH - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THR ITS
                                PRINCIPAL SECRETARY ENERGY DEPT. VALLABH
                                BHAWAN BHOPAL (MADHYA PRADESH)

                          2.    MANAGING DIRECTOR M.P. PURVA KSHETRA
                                VIDYUT VITRAN COMPANY SHAKTI BHAWAN
                                RAMPUR JABALPUR (MADHYA PRADESH)

                          3.    MANAGING         DIRECTOR M.P.   POWER
                                MANAGEMENT    COMPANY SHAKTI BHAWAN,
                                RAMPUR JABALPUR (MADHYA PRADESH)

                          4.    CHIEF ENGINEER (RR) M.P. PURVA KSHETRA
                                VIDYUT VITARAN COMPANY ARJUN NAGAR
                                REWA (MADHYA PRADESH)

                          5.    EXECUTIVE ENGINEER M.P. PURVA KSHETRA
                                VIDYUT VITRAN COMPANY CITY DIVISION OLD
                                GALLA MANDI AMAHIYA REWA (MADHYA
                                PRADESH)

                                                                           .....RESPONDENTS
                          (SHRI TARUN SENGAR - PANEL LAWYER FOR RESPONDENT/STATE,
                          SHRI RAKESH K. TIWARI - ADVOCATE FOR RESPONDENTS NO.2 TO 5)
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 8/26/2023
12:22:37 PM
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                                 This petition coming on for admission this day, th e court passed the
                          following:
                                                               ORDER

The present petition is being filed challenging the order dated 24.06.2016, passed by the respondent No.4 whereby, the services rendered by the petitioner from 06.02.1980 to 30.04.1984 under the work charged establishment have not been taken into counting for the purpose of retiral dues.

2. The petitioner was initially appointed as muster roll employee in the year 1980 under the work charged establishment. It is reflected from document Annexure P/2 wherein the name of the petitioner find its place at serial No.20. His services were regularized in the year 1984. He attained the age of

superannuation on 30.06.2016. The respondents have issued a pension calculation sheet of the petitioner from where the petitioner came to know that respondents have not counted the services of the petitioner which were rendered by him under the work charged established w.e.f. 06.02.1980 till 30.04.1984. It is argued that law is settled by the Hon'ble Supreme Court in the case Prem Singh v. State of U.P. and others : (2019) 10 SCC 516, wherein it was held by the Hon'ble Supreme Court that the services rendered by the employee under the work charged established has to be taken under consideration for grant of post retiral benefits. He has also placed reliance upon the judgment passed by the Division Bench of this Court in the case of Samim Begum v. State of M.P. and others 2006 (4) MPLJ 112 and prays for grant of similar relief to him.

3. Per contra, counsel appearing for the respondents has opposed the contention and submitted that petitioner himself has filed an application for grant of post retiral benefits to him from the date of regularization i.e. 1984 and Signature Not Verified Signed by: LORETTA RAJ Signing time: 8/26/2023 12:22:37 PM

in pursuance to the same, the authorities have extended the benefits. Therefore, once the petitioner himself has filed an application seeking the benefits, he is stopped from making a prayer in the writ petition for extension of benefits from 1980. He has prayed for dismissal of the petition.

4. Heard the counsels for the parties.

5. The only question which arises for consideration before this court is whether an employee who has worked under the work charged established and subsequently regularized whether the period for which he has rendered his services under the work charged establishment as a daily rated employee is to be counted in the length of service for purpose of post retiral dues. The aforesaid question was considered by the Hon'ble Supreme Court in the case of Prem Singh (supra) wherein it is held-

"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 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 Signature Not Verified Signed by: LORETTA RAJ Signing time: 8/26/2023 12:22:37 PM

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 workcharged 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."

6. The aforesaid judgment was followed by this Court in the case of Samim Begum (supra) wherein it is 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 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."

7. Under these circumstances, it is clear that the controversy has been settled by the Hon'ble Supreme Court. There is no dispute that the petitioner has worked under the work charged establishment from 06.02.1980 till 30.04.1984 Signature Not Verified Signed by: LORETTA RAJ Signing time: 8/26/2023 12:22:37 PM

therefore, he is entitled for counting his service for the aforesaid period in the length of service for the purpose of post retiral dues.

8. Accordingly, petition is allowed. The authorities are directed to extend the post retiral benefits to the petitioner, counting his services rendered from 1980 to 1984 in the length of service. The aforesaid benefits be extended within a period of 90 days from the date of certified copy of this order.

9. Petition stands allowed.

(VISHAL MISHRA) JUDGE Loretta

Signature Not Verified Signed by: LORETTA RAJ Signing time: 8/26/2023 12:22:37 PM