Shri Laxman Patel vs Madhya Pradesh Pashchim Kshetra ...
2023 Latest Caselaw 20489 MP

Madhya Pradesh High Court

Shri Laxman Patel vs Madhya Pradesh Pashchim Kshetra ... on 5 December, 2023

Author: Vivek Rusia

Bench: Vivek Rusia

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE VIVEK RUSIA
                                             ON THE 5 th OF DECEMBER, 2023
                                             WRIT PETITION No. 4617 of 2014

                          BETWEEN:-
                          SHRI LAXMAN PATEL S/O SHRI RAMHELAWAN SINGH,
                          R/O: MIG-C, 33/4, RISHI NAGAR EXTENSION, NEAR OF
                          KALIDAR SCHOOL, FREEGANJ, UJJAIN (MADHYA
                          PRADESH)

                                                                                        .....PETITIONER
                          (BY SHRI AJINKYA DAGAONKAR - ADVOCATE.)

                          AND
                          1.    ADDITIONAL SUPERINTENDING ENGINEER (RE),
                                MADHYA   PRADESH    PASHCHIM   KSHETRA
                                VIDHYUT VITRAN COMPANY LTD.,     UJJAIN
                                (MADHYA PRADESH)

                          2.    CHIEF ENGINEER (UR), MADHYA PRADESH
                                PASHCHIM   KSHETRA      VIDHYUT   VITRAN
                                COMPANY LTD., UJJAIN (MADHYA PRADESH)

                          3.    CHIEF GENERAL MANAGER, OFFICE OF
                                MANAGING     DIRECTOR, MADHYA PRADESH
                                PASHCHIM   KSHETRA     VIDHYUT   VITRAN
                                COMPANY LTD., INDORE (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                          (RESPONDENTS - MADHYA PRADESH PASCHIM KSHETRA VIDYUT
                          VITARAN COMPANY LIMITED BY SHRI MADHUSUDAN DWIVEDI -
                          ADVOCATE.)

                                T h is petition coming on for orders this day, t h e cou rt passed the
                          following:
                                                             ORDER

The petitioner has filed the present petition under Article 226 of Constitution of India challenging order dated 12.04.2013 (Annexure P/1) as well

as order dated 24.08.2013 (Annexure P/2). By Annexure P/1, the option submitted by the petitioner to opt the retirement age of 60 years has been turned down; and thereafter by Annexure P/2, the petitioner has been retired upon attaining the age of 58 years.

2. The petitioner was initially appointed to the post of Assistant Grade-I (Tracer) in the year 1981. Thereafter, he was promoted to the post of Draftsman (re-designated as Additional Draftsman) in the year 1999 vide Annexure P/4.

3. The State Government took a policy decision to abolish / convert Madhya Pradesh State Electricity Board and six different Vidyut Vitaran companies were

created. Since the petitioner was posted in eastern part of State of Madhya Pradesh, therefore, he opted for merger of his services in Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Limited, Indore.

4. The respondent - Mandhya Pradesh Paschim Kshetra Vidyut Vitaran Company Limited issued Order No.Pra.Ni./Paschim Kshetra/01/Establishment- 1/252/196 dated 19.03.2013 (Annexure P/5) for enhancing the age of superannuation for all company cadre Employees from "58 years" to "60 years", except Class-IV (Line Attendant) for whom it shall be 55 years, and all the employees were directed to submit an option for acceptance of superannuation age of 60 years. The petitioner also submitted an option on 06.04.2013 (Annexure P/6), that was turned down, as the petitioner is working as Draftsman / Additional Draftsman, which has been declared as "Dying Cadre" vide circular No.196 dated 19.03.2013. Hence, this petition before this Court.

5. After notice, the respondents filed reply by submitting that though the age of superannuation has been enhanced for Class-I, Class-II and Class-III

Officers / Employees from "58 years" to "60 years", but so far as 33 Cadres are concerned, the Company vide circular No.196 dated 19.03.2013 has decided not to accept option from the employees, who are in a Dying Cadre. Therefore, the option of the petitioner has rightly been rejected and he has rightly been retired at the age of 58 years.

6. Shri Ajinkya Dagaonkar, learned counsel appearing for the petitioner submits that similar issue came up for consideration before this Court in Writ Petition No.838 of 2016 (Smt. Asha Koliya W/o Satish Koliya v. Madhya Pradesh Power Transmission Company Limited & another) and Writ Petition No.3262 of 2016 (Narendra Kumar Joshi S/o Shankarrao Joshi v. Madhya Pradesh Power Transmission Company Limited & others) vide common order dated 21.03.2017, this Court allowed the writ petitions by placing reliance on a judgment passed in the case of Chandrabhan Singh Parihar S/o Shivbodh Singh Parihar v. Principal Secretary, State of Madhya Pradesh & others, Writ petition No.8763 of 2012 order 09.04.2013 and specifically held that the respondents cannot be permitted to discriminate between the employees who have joined their services in Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Limited, as all the employees who have been transferred and absorbed in the services of the company from one class only and cannot be discriminated within the class.

Therefore, they are also entitled to continue up to the age of 60 years. The petitioner has been held entitled for all consequential benefits treating him into services up to the age of 60 years including 50% of pension. The aforesaid order was challenged by the Company by way of Writ Appeal No.364 of 2017 as well as Writ Appeal No.369 of 2017 and vide common order dated

29.08.2017, both the writ appeals were dismissed. Thereafter, the validity of both the orders was tested by the Company by way of SLP (C) No.5593 & 5594 of 2018 and vide order dated 16.08.2022, the SLP has been dismissed. Hence, the order passed by the Writ Court has attained the finality in which the respondents have specifically raised about the applicability of the circular dated 19.03.2013 in respect of employees of Dying Cadre.

7. Shri Madhu Sudan Dwivedi, learned counsel appearing for the respondent

- Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company submits that a coordinate bench of this Court vide order dated 22.05.2020 has dismissed Writ Petition No.7285 of 2014 (Narendra Singh Raghuwanshi & others v. State of Madhya Pradesh & others) filed by the Assistant Draftsman working in Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Limited, who was claiming retirement / superannuation age of 60 years.

8. So far as the order passed by the Writ Court in case of Narendra Singh Raghuwanshi (supra) is concerned, while deciding this writ petition, both the orders passed by this Court at Indore Bench in Writ Petition No.838 of 2016 and Writ Petition No.362 of 2016 and writ appeals were not placed before the Writ Court.

9. Shri Dwivedi, learned counsel for the respondents submits that the Division Bench of this Court did not consider the effect of circular No.196 dated 19.03.2013 and the same was not specifically challenged by the petitioner in writ petition also. Therefore, this matter is liable to be considered on merit, despite the order passed by the coordinate bench of this Court in Writ Petition No.838 of 2016 and Writ Petition No.362 of 2016.

10. Shri Dagaonkar, learned counsel for the petitioner has drawn attention to para (at Page 17 Annexure P/19, colly.) of order dated 21.03.2017 passed in

Writ Petition No.838 of 2016 and Writ Petition No.362 of 2016 (supra) in which specific arguments were raised in respect of notification dated 19.03.2013 issued for all the employees, who are in Dying Cadre, would retire at the age of 58 years. The effect of notification dated 19.03.2013 was specifically raised before this Court and this Court by recording opinion rejected, that the respondents cannot create a class within a class. All the employees, who were working in Madhya Pradesh State Electricity Board, were transferred and absorbed in the Company and they formed a "one class". Therefore, this Court has rejected the effect of Circular No.196 dated 19.03.2013, being a discriminatory in nature, now the respondent - company is estopped from relying the same.

11. Even otherwise, although these 33 cadre posts were declared as "Dying Cadre", but no reason has been assigned why employees / officers working are not entitled for their enhancement of superannuation age from "58 years" to "60 years". If they have been taken into the services of the respondents' Company with posts, then they cannot be discriminated with other employees / officers only in respect of age of superannuation. All such posts could have been declared as "Dying Cadre" even after retirement of employees at the age of 60 years. For retiring them less than two years, there is no valid justification given by the respondents. Therefore, Circular No.196 dated 19.03.2013 is discriminatory under Articles 12 and 14 of the Constitution of India being unsustainable under law, as held by this Court in earlier round of litigation.

12. Therefore, impugned orders are quashed. Order dated 21.03.2017 passed in Writ Petition No.838 of 2016 and Writ Petition No.362 of 2016 shall apply mutatis mutandis to the present case also, so far as it relates to the

petitioner only.

13. It is also made clear that this order dated 21.03.2017 passed in Writ Petition No.838 of 2016 and Writ Petition No.362 of 2016 shall be applicable only to those who submitted their option before retirement.

14. Accordingly, Writ Petition No.4617 of 2014 stands disposed off.

(VIVEK RUSIA) JUDGE rcp