Madhya Pradesh High Court
Mohd. Sajid vs State Of Madhya Pradesh on 2 May, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF MAY, 2023
WRIT PETITION No. 10638 of 2019
BETWEEN:-
RADHEY SHYAM PATEL S/O SHRI RAM BHAROS PATEL,
AGED ABOUT 60 YEARS, OCCUPATION: WORKING AS
STHAI KARMI R/O VILLAGE PINDRAI, TAHSIL
NAINPUR, DISTT. MANDLA (MADHYA PRADESH)
.....PETITIONER
(NONE)
AND
1. STATE OF MADHYA PRADESH THR. THE
SECRETARY WATER RESOURCES DEPTT.,
MANTRALAYA, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. ENGINEER-IN-CHIEF, WATER RESOURCE
D EPARTM EN T, NARMADA BHAWAN, TULSI
NAGAR, BHOPAL (MADHYA PRADESH)
3. EXECUTIVE ENGINEER WATER RESOURCE
D E PA R T M E N T DIVISION MANDLA, DISTT.
MANDLA (MADHYA PRADESH)
4. SUB DIVISIONAL OFFICER WATER RESOURCE
DEPARTM ENT THOWER NAHAR SUB DIVISION
NO.1, NAINPUR MANDLA, DISTT. MANDLA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER)
WRIT PETITION No. 12165 of 2019
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BETWEEN:-
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:21 IST MOHD. SAJID S/O SHRI MOHD. MATIN, AGED ABOUT 59
YEAR S , OCCUPATION: PERMANENT EMPLOYEE AS
2
TYPIST H.NO. 07 NEAR AAMWALI MASJID OPPOSTITE
A.K ANSARI RETD. SP HOUSE JAHANGIRABAD, BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(NONE)
AND
1. STATE OF MADHYA PRADESH THR. PRINCIPAL
SECRETARY PUBLIC WORKS DEPTT.,
MANTRALAYA, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. ENGINEER IN CHIEF PUBLIC WORKS
DEPARTMENT PLOT NO.27-28, NIRMAN BHAWAN,
ARERA HILLS BHOPAL (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC WORKS
D EPARTM EN T DIVISION NO.2, SHED NO.6(A),
JAWAHAR CHOWK, BHOPAL (MADHYA PRADESH)
4. SUB DIVISIONAL OFFICER PUBLIC WORKS
DEPARTM ENT WEST SUB DIVISION LALGHATI
MAIN ROAD, BAIARGARH ROAD, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Both these petitions have been filed by the petitioner respectively that
they are working as Sthai Karmchari against Class-IV post, therefore, they
entitled to continue in service upto the age of 62 years.
Respondents have filed their reply pointing out that it is evident from
Annexure-P/2 that Radheshyam Patel was working as a Supervisor. Mohd.
Sajid was working as Typist, therefore, they are working against Class-III post
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for which age of superannuation was 60 years. It is submitted that the
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Date: 2023.05.04 19:57:21 IST
petitioners attained the age of superannuation in the year 2019. But fact of the
matter is Madhya Pradesh Shaskiya Sewak (Ardhwarshiki Aayu Sansodhan)
Adhiniyam 2018 (For brevity "Ordinance of 2018") is not applicable in the case
of daily wager who has been classified as permanent employee.
Learned Panel Lawyer for the respondent/State in his turn submits that
Fundamental Rule-2, provides for "extent of application" of the Fundamental
Rules. It is submitted that the Fundamental Rules apply to all Government
Servants whose pay is debitable to civil estimates in India, and to any other
class of Government Servants in India to which the Secretary of State in
Council may by general or special order declare them to be applicable. It is
submitted that in the case of Ram Naresh Rawat versus Ashwini Ray &
Others (2017) 3 SCC 436, the Supreme Court has held that the daily wagers
appointed without following due selection procedure and their appointments
being not against regular vacancies, therefore, the petitioner classified as
permanent employee is entitled to receive only minimum of pay scale.
It is to be noted that Supreme Court has also observed that there is
difference between permanent classification and regularization and it has been
held that there is distinction between "permanent employee'' and ''regular
employee''. The Supreme Court has further held that the right to equality under
Article 14 of the Constitution of India is not in negative term as has been held
by the Supreme Court in the case of Indian Council of Agricultural
Research & Another versus T.K. Suryanarayan & Others (1997) 6 SCC
766. This aspect has also been considered & decided in the case of State of
Madhya Pradesh & Others versus Dilip Singh Patel & Others (2017) 3
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SCC 455 wherein it is held that the daily rated employees are entitled to
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Digitally signed by TULSA SINGH
minimum wages and allowances as per revised pay scale but without increment.
Date: 2023.05.04 19:57:21 IST
The said aspect has been considered by a Division Bench of Gwalior High
Court in Review Petition No.264/2017 (State of Madhya Pradesh versus
Rajendra Kumar Jain) and connected review petitions decided on 24.5.2018
wherein it is held that a daily wager, who is declared permanent by way of
classification by the employer, merely on completion of 240 days of service as
daily wager without any judicial intervention, is entitled to minimum of regular
pay scale without
increment and will not confer any other benefit to the petitioner.
After hearing learned counsel for the parties and going through the record
it is evident that petitioner's order of grant of pay-scale is in terms of the order
dated 7.10.2016 issued by the M.P. General Administration Department,
Mantralaya, Bhopal, Order No.F-5-1/2013/1/3 and also in terms of the
directives issued by the Engineer-in-Chief, Water Resources Department,
Bhopal, vide letter No.208/LC/Pra.A/2010 dated 3.12.2016 whereby after
enquiry their terms of employment have been regulated.
A perusal of circular dated 7.10.2016 reveals that this circular was issued
with a view to regulate the services of permanently classified
employees. It reads as under :-
Ek/; izns'k 'kklu
lkekU; iz'kklu foHkkx
ea=ky;] Hkksiky
&&&&&
Øekad ,Q 5&[email protected]@[email protected] Hkksiky] fnukad 07 vDVwcj] 2016
izfr]
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SAN 'kklu ds leLr foHkkx]
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:21 IST
v/;{k] jktLo e.My]
leLr foHkkxk/;{k]
leLr laHkkxh; vk;qDr]
leLr dysDVj]
leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r]
e/;izns'kA
fo"k; %& dk;Zjr nSfud osru Hkksxh Jfedksa ds fy, ^^LFkk;h
dfeZ;ksa dks fofu;fer djus dh ;kstuk**A
&&&&&
jkT; 'kklu n~okjk fu;ferhdj.k ls oafpr nSfud osru Hkksfx;ksa ds
laca/k esa fuEukuqlkj dk;Zokgh djus dk fu.kZ; fy;k x;k gS %&
1-1 bUgsa ^nSfud osru Hkksxh* ds LFkku ij ^LFkk;h dehZ* dh
Js.kh nh tkosA
1-2 bUgsa fuEukuqlkj osrueku LohÃ'r fd;k tkosA
Js.kh Oksrueku
vdq'ky 4000&80&7000
v)Zdq'ky 4500&90&7500
dq'ky 5000&100&8000
1-3 ofj"Brk dk ykHk nsus gsrq 01 flrEcj] 2016 dh fLFkfr esa muds
}kjk iw.kZ fy, o"kksZ ds vk/kkj ij lacaf/kr osrueku esa vafdr osruo`f) dh nj
ls x.kuk dks mUgsa lacaf/kr osrueku esa osru fu/kkZj.k fd;k tkosxkA
1-4 bl ij bUgsa eagxkbZ HkRrk ns; gksxkA ¼orZeku 125
izfr'kr½
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1-5 dksbZ ,fj;j ns; ugha gksxkA
Digitally signed by TULSA SINGH
1-6 ;g osru fu/kkZj.k 01 flrEcj] 2016 dh frfFk ls gksxkA vkxkeh
Date: 2023.05.04 19:57:21 IST
osruo`f) flrEcj] 2017 ls ns; gksxhA
1-7 vf/kokf"kZdh vk;q iw.kZ gksus ij 15 fnu izfro"kZ ds lsokdky ds
osru ds vk/kkj ij miknku dh ik=rk gksxhA ;g jkf'k vdq'ky ds fy, :-
1]25][email protected]&] v)Zdq'ky ds fy, :- 1]50][email protected]& ,oa dq'ky ds fy, :-
1]75][email protected]& rd lhfer gksxhA
1-8 ,sls nSfud osru Hkksxh tks fnukad 16 ebZ] 2007 dks dk;Zjr
Fks] o fnukad 01 flrEcj] 2016 dks Hkh dk;Zjr gSa] bl osru Øe ,oa vU;
ykHkksa ds fy, ik= gksxa sA fnukad 16 ebZ 2007 ds i'pkr 'kklu dh
[email protected] mijkUr l{ke vf/kdkjh n~okjk nSfud osru Hkksxh ds in ij
fu;qDr fd;s x;s gSa mUgsa Hkh ;kstuk dh ik=rk gksxhA fnukad 01 flrEcj
2016 ds iwoZ lsokfuo`[email protected] ls i`Fkd fd;s x;s vFkok lsok NksM+ pqds
nSfud osru Hkksfx;ksa dks bl ;kstuk dh ik=rk ugha gksxhA lafonk]
va'kdkyhu ,oa vkmV lksflZax ds ek/;e ls fu;qDr deZpkfj;ksa ds fy, ;g
;kstuk ykxw ugha gSA
2- prqFkZ Js.kh ds fjDr fu;fer inksa ij izkFkfedrk ds vk/kkj ij
fu;qfDr gsrq ,d ;kstuk cukbZ xbZ gS tks layXu ifjf'k"V& ^v* ij gSA bl
;kstuk ds fØ;kUou gsrq e/;izns'k dfu"B lsok ¼la;qDr vgZrk½ fu;e]
&2013 ds fu;e&7 esa of.kZr lewg&6 esa prqFkZ Js.kh dh p;u izfØ;k dks
,d o"kZ ds fy, LFkfxr dh tkrh gSA
3- eku- mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu esa ftu nSfud osru
Hkksxh deZpkfj;ksa dks dfri; foHkkxks a }kjk vkns'k tkjh fd;s x;s gSa]
mUgs aiwoZor j[kk tk,A ftu nSfud osru Hkksxh deZpkfj;ksa }kjk eku-
mPp U;k;ky; esa izdj.k nk;j fd;s x;s gSa mUk nSfud osru Hkksxh
deZpkfj;ksa }kjk lacaf/kr U;k;ky;hu izdj.k okfil fy;s tkus ij izLrkfor ;kstuk
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SAN dk ykHk fn;k tk,A
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:21 IST 4-- fuekZ.k foHkkxksa ds vfrfjDr vU; ftu foHkkxka s es a nSfud
osru Hkksxh Jfed dk;Zjr~ gSa] mUgsa orZeku esa Jek;qDr }kjk le;≤ ij
fu/kkZfjr U;wure etnwjh nh tkrh gSA jkT; 'kklu ,d dY;k.kdkjh jkT; gksus
dh vo/kkj.kk ij ml U;wure etnwjh ls csgrj etnwjh nsus ds fy, bl Js.kh ds
nSfud osru Hkksxh Jfedks a dks Hkh LFkk;h dehZ dk inuke nsrs gq, ogh
osrueku ,oa lqfo/kk,a ns; gksxh] tks muds led{k nSfud osru Hkksxh dks
dafMdk&1-1 ls 1-8 ds v/khu fuekZ.k foHkkxksa ds LFkk;h dehZ dks ns;
gksxhA rn~uqlkj lacaf/kr foHkkxka s }kjk dk;Zikfyd vkns'k tkjh fd;s tk,aA
5- e/;izns'k nSfud osru Hkksxh deZpkjh ¼lsok dh 'krsZ½ fu;e]
2013 tks fd lafo/kku ds vuqPNsn 309 ds vUrxZr tkjh fd;s x;s gSa dks
fujLr fd;k tkdj fofHkUu fuekZ.k mijksDr dafMdk& 1-1 ls 1-8 ds vuqlkj
e/;izns'k vkSn~;ksfxd fu;kstu ¼LFkk;h vkKk,a½ vf/kfu;e 1961 o fu;e
1963 ds vUrxZr bu fuekZ.k foHkkxka s es a dk;Zjr Jfedks a dks
vkSn~;ksfxd Jfed ekurs gq, vkns'k tkjh fd;s tk,asxs o lacaf/kr foHkkx ds
LFkk;h dfeZ;ksa dk fu;eu rn~uqlkj fd;k tk,A
6- Ã'i;k mijksDrkuqlkj dk;Zokgh lqfuf'pr dh tk,A
e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj
¼,e-ds- ok".ksZ;½
izeq[k lfpo e/; izns'k 'kklu
lkekU; iz'kklu foHkkx
Thus, from a reading of the aforesaid circular on the basis of which order
dated 12.5.2017 has been passed it is evident that it is for regulating the service
conditions of daily wagers and in place of daily wagers they have been given
status of permanently classified employees under 3 categories namely unskilled,
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semi-skilled and skilled. Para 4 of the circular categorically makes a mention of
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Date: 2023.05.04 19:57:21 IST
fact that State being a welfare State with a view to provide better wages then
that of minimum wages, the daily wage labourers have been given status of
permanently classified labourers and their pay and facilities have been
regulated. In para 5 of the circular it is clearly mentioned that provisions of
M.P. Industrial Employment (Standing Orders) Act, 1961 and Rules of 1963
shall be applicable on the working labourers deployed in construction
Department mentioned in clause 1.1 to 1.8 of the circular.
A conjoint reading of the provision makes it clear that service conditions
of the petitioner is still to be governed by the M.P. Industrial
Employment (Standing Orders) Act, 1961 and the Rules of 1963, therefore,
they cannot be treated to be regular employees of the State Govt. of M.P. so to
attract the provisions of FR2 and, in turn, provisions of FR56 which are
applicable only to Govt. servants except those mentioned in sub rules (1-a), (1-
b), (1-c), (1-d), (1-e), (14), (1-g), (1-h), (1-i), (1-j) and (1-k). Thus, a combined
reading of FR2 and FR56 makes it clear that the provision of FR56 in terms of
which M.P. Shashikiya Sewak (Adhivarshikiya Sanshodhan) Adhiniyam, 2018,
has been enacted will be applicable only to Govt. servants whose pay is
debitable to civil estimates in India and to any other class of Govt. servants in
India to which the Secretary of the State in Council may by general or special
order declare them to be applicable.
There is no material on record to show that Governor of M.P. or the
Cabinet of M.P. has by general or special order declared that petitioners pay is
debitable to the Civil estimates of the State and for the purpose of classification
shall be treated to be Govt. servants for the purpose of application of the
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fundamental rules. In absence of any such
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notification, direction/Ordinance, law laid down in the case of Ramesh Prasad
Date: 2023.05.04 19:57:21 IST
Agnihotri Vs. State of M.P. and others decided on 3.8.2021 in
W.P.No.13115/2019 and other connected matters considering industrial
labourers to be Govt. Servants on the basis of use of terminology in FR56 as
used in the case of M.L. Kalia (supra) needs to be discussed further.
In the case of M.L.Kalia Vs. Union of India and others, reported in
(1979)3 SLR 334 (MP) = 1979 M.PL.J. 422, it is held that a reading of sub
rules (a) and (j) of Rule 56, fundamental rules (Central) shows that when a
Govt. Servant retired from service it is immaterial which post he was holding at
the time of retirement, equally immaterial is the capacity in which that post was
held. There is nothing in rule 56(A) to indicate that on attaining the age of 58
years he shall be retired from his substantive post only. Although sub rule (A)
says that a Govt. Servant shall be retired on attaining the age of 58 years
irrespective of whether at that time he was temporary, officiating or permanent.
Thus, to appreciate the law laid down in the case of M.L.Kalia (supra),
it is necessary to have reference to the provisions contained in
FR56 as have been substituted by M.P. Act 21 of 1998 (31.5.1998). It reads as
under :-
“F.R. 56: (a) Except as otherwise provided in this rule,
every Government servant shall retire from service on the afternoon
of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the
first of a month shall retire from service on the afternoon of the last
day of the preceding month on attaining the age of sixty years.
Provided further that a Government servant who has attained
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the age of fifty-eight years on or before the first day of May, 1998
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Date: 2023.05.04 19:57:21 IST
and is on extension in service, shall retire from the service on expiry
of his extended period of service. or on the expiry of any further
extension in service granted by the Central Government in public
interest, provided that no such extension in service shall be granted
beyond the age of 60 years.
(b) A workman who is governed by these rules shall retire
from service on the afternoon of the last day of the month in which
he attains the age of sixty years.
(bb) The age of superannuation in respect of General Duty
Medical Officers and specialists included in Teaching, Non-Teaching
and Public Health sub-cadres of Central Health Service, AYUSH
doctors, Civilian doctors under Directorate General of Armed
Forces Medical Services, dental doctors working under Ministry of
Health and family Welfare, doctors of Indian Railways Medical
Services and dental doctors under Ministry of Railways , doctors of
General Duty Medical Officers sub-cadre of Central Armed Forces
and Assam Rifles and Specialist Medical Officers of Central Armed
Police Forces and Assam Rifles shall be sixty-five years.
Provided that notwithstanding anything contained in any other
rules, above doctors except in Central Armed Police Forces and
Assam Rifles shall hold the administrative posts till the date of
attaining the age of sixty â€"two years and thereafter their services
shall be placed in Non- Administrative positions.
Provided that for the specialists included in the Teaching sub-
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cadres of the Central Health Service who are engaged only in
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teaching activities and not occupying administrative positions, the
Date: 2023.05.04 19:57:21 IST
age of superannuation shall be sixty-five years:
Provided further that such specialists of the Teaching sub-
cadre of Central Health Service who are occupying administrative
positions shall have the option of seeking appointment to the
teaching positions in case they wish to continue in service up to
sixty-five years.
Provided that notwithstanding anything contained in any other
rules, Teaching, Non-Teaching, Public Health Specialists and
General Duty Medical Officer sub-cadres of the Central Health
Service shall hold the administrative posts till the date of attaining the
age of 62 years and thereafter their services shall be placed in non-
administrative positions.
(bbb) The age of superannuation in respect of nursing teaching
faculty with M.Sc in Nursing in the Central Government Nursing
Institutions shall be 65 years subject to the condition that they
continue to function as faculty members after the age of 60 years.
(c) Deleted.
(cc) Deleted.
(d) No Government servant shall be granted extension in
service beyond the age of retirement of sixty years:
Provided that a Government servant dealing with budget work
or working as a full-time member of a Committee which is to be
wound up within a short period of time may be granted extension of
service for a period not exceeding three months in public interest;
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Provided further that a specialist in medical or scientific fields
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Date: 2023.05.04 19:57:21 IST
may be granted extension of service up to the age of sixty- two
years, if such extension is in public interest and the grounds for such
extension are recorded in writing:
Provided also that an eminent scientist of international stature
may be granted extension of service up to the age of 64 years, if
such extension is in public interest and the grounds for such
extension are recorded in writing.
Provided also that notwithstanding anything contained in any
rule, the Central Government may, if considered necessary in public
interest so to do, give extension in service to a Cabinet Secretary in
the Central Government for such period or periods as it may deem
proper subject to the condition that his total term as such Cabinet
Secretary does not exceed four years.
Provided also that the Central Government may, if considers
necessary in public interest so to do, give extension in service to the
Defence Secretary, Foreign Secretary, Home Secretary, Director,
Intelligence Bureau, Secretary, Research and Analysis Wing and
Director, Central Bureau of Investigation, in the Central Government
for such period or periods as it may deem proper, on a caseto- case
basis, subject to the condition that the total term of such Secretaries
or Directors, as the case may be, who are given such extension in
service under this rule does not exceed two years.
Provided also that notwithstanding anything contained in the
fifth proviso, the Central Government may, if considers it necessary,
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in public interest, so to do, give an extension in service for a further
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period not exceeding three months beyond the said period of two
Date: 2023.05.04 19:57:21 IST
years to the Home Secretary and the Defence Secretary.
Provided also that notwithstanding anything anything
contained in the fifth proviso, the Central Government may, if
considers it necessary, in public interest, so to do, give an extension
in service for a further period not exceeding one year beyond the
said period of two years to the Foreign Secretary.
Provided also that, the Central Government may, if considered
necessary in public interest so to do, give extension of service to the
Secretary, Department of Space and the Secretary, Department of
Atomic Energy, for such period or periods as it may deem proper
subject to a maximum age of 66 years.
Provided also that the Appropriate Authority shall have the
right to terminate the extension of service before the expiry of such
extension by giving a notice in writing of not less than three months
in the case of a permanent or a quasi-permanent Government servant,
or, of one month in the case of a temporary Government servant, or
pay and allowances in lieu of such notice.
(e)
(f)
(ff)- deleted
(g)
(h)
(i) A Military Officer in a Civil Department shall cease to be in
civil employment on the date he attains the age of sixty years.
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(j) Notwithstanding anything contained in this rule, the
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Date: 2023.05.04 19:57:21 IST
Appropriate Authority shall, if it is of the opinion that it is in the
public interest so to do, have the absolute right to retire any
Government servant by giving him notice of not less than three
months in writing or three months' pay and allowances in lieu of such
notice:
(i) If he is, in Group 'A' or Group 'B' service or post in a
substantive, quasi-permanent or temporary capacity and had entered
Government service before attaining the age of 35 years, after he has
attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five
years;
(jj) (i) If on a review of the case either on a representation from
the Government servant retired prematurely or otherwise, it is
decided to reinstate the Government servant in service, the authority
ordering reinstatement may regulate the intervening period between
the date of premature retirement and the date of reinstatement by the
grant of leave of the kind due and admissible, including extraordinary
leave, or by treating it as dies non depending upon the facts and
circumstances of the case:
Provided that the intervening period shall be treated as a
period spent on duty for all purposes including pay and allowances,
if it is specifically held by the authority ordering reinstatement that the
premature retirement was itself not justified in the circumstances of
the case, or, if the order of premature retirement is set aside by a
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Court of Law.
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(ii) Where the order of premature retirement is set aside by a
Date: 2023.05.04 19:57:21 IST
Court of Law with specific directions in regard to regulation of the
period between the date of premature retirement and the date of
reinstatement and no further appeal is proposed to be filed, the
aforesaid period shall be regulated in accordance with the directions
of the Court.
(k) (1) Any Government servant may, by giving notice of not
less than three months in writing to the appropriate authority, retire
from service after he has attained the age of fifty years, if he is in
Group' A' or Group 'B' service or post, (and had entered
Government service before attaining the age of thirty-five years), and
in all other cases after he has attained the age of fifty-five years:
Provided that-
(a) Not printed (Since Clause (e) has been Deleted).
(b) nothing in the clause shall also apply to a Government
servant, including scientist or technical expert who (i) is on
assignment under the Indian Technical and Economic Co-operation
(ITEC) Programme of the Ministry of External Affairs and other aid
Programmes,(ii) is posted abroad in a foreign-based office of a
Ministry/ Department and (iii) goes on a specific contract assignment
to a foreign Government unless, after having been transferred to
India, he has resumed the charge of the post in India and served for a
period of not less than one year; and
(c) it shall be open to the Appropriate Authority to withhold
permission to a Government servant, who seeks to retire under this
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clause, if â€"
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Date: 2023.05.04 19:57:21 IST
(i) the Government servant is under suspension: or
(ii) a charge-sheet has been issued and the disciplinary
proceedings are pending; or
(iii) if judicial proceedings on charges which may amount to
grave misconduct, are pending.
Explanation: For the purpose of this clause, judicial
proceedings shall be deemed to be pending, if a complaint or report
of a police officer, of which the Magistrate takes cognizance, has
been made or filed in a criminal proceedings;
(I-A)(a) A Government servant referred to in subclause (1)
may make a request in writing to the Appointing Authority to accept
notice of less than three months giving reasons therefore;
(b) On receipt or a request under sub-clause (I-A) (a), the
Appointing Authority may consider such request for the curtailment
of the period of notice of three months on merits and if it is satisfied
that the curtailment of the period of notice will not cause any
administrative inconvenience, the Appointing Authority may relax the
requirement of notice of three months on the condition that the
Government servant shall not apply for commutation of a part of his
pension before the expiry of the period of notice of three months.
(2) A Government servant, who has elected to retire under this
rule and has given the necessary intimation to that effect to the
Appointing Authority, shall be precluded from withdrawing his
election subsequently except with the specific approval of such
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authority:
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Provided that the request for withdrawal shall be within the
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intended date of his retirement.
(l) Notwithstanding anything contained in Clause (j), the
Appropriate Authority shall, if it is of the opinion that it is in the
public interest to do so, have the absolute right to retire a
Government servant in Class III service or post who is not governed
by any pension rules, after he has completed thirty years' service by
giving him notice of not less than three months in writing or three
months' pay and allowances
in lieu of such notice.
(m) A Government servant in Group 'C' post who is not
governed by any pension rules, may, by giving notice of not less than
three months in writing to the Appropriate Authority, retire from
service after he has completed thirty years service; Provided that it
shall be open to the Appropriate Authority to withhold permission to
a Government servant, who seeks to retire proceedings (should be
'if);
i. the Government servant is under suspension; or
ii. a charge-sheet has been issued and the disciplinary
proceedings are pending; or
iii. if judicial proceedings on charges which may amount to
grave misconduct, are pending.
Explanation: For the purpose of this clause, judicial
proceedings shall be deemed to be pending, if a complaint or report
of a police officer, of which the Magistrate takes cognizance, has
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been made or filed in a criminal proceedings;â€
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Thus, it is evident that FR56 nowhere deals with any category or
any class of employees who can be termed as temporary, officiating or
permanent and this aspect was probably not brought to the notice of a
coordinate Bench which decided W.P. No.13115/2019 (Ramesh Prasad
Agnihotri Vs. State of M.P. and others) on 3.8.2021.
In any case even reference to that judgment in the case ofM.L.Kalia
(supra) reveals that the ratio is that capacity in which that post was held is
immaterial and in this context words 'temporary', 'officiating' or 'permanent'
have been used. Thus, ratio of law in M.L. Kalia (supra) is not applicable to the
facts and circumstances of the case.
In case of State of U.P. And Anr. Vs. M.J. Siddiqui and Ors., AIR
1980 SC 1098, it is held that in order to determine the nature of the
appointment, one has to look to the heart and substance of the matter, the
surrounding circumstances, the mode, the manner and the terms of appointment
and other relevant factors. As per fundamental rule 9(4), in a Government
service there are different cadres. Normally cadre means the strength of a
service or a part of a service sanctioned as a separate unit. Each of these cadres
consists of a number of posts. These posts may be permanent or temporary. A
permanent post is one which is sanctioned without limit of time. A temporary
post denotes one which is sanctioned for a limited time and is very often
outside the cadre.
In case of Arun Kumar Chatterjee Vs. South Eastern Railway, AIR
1985 SC 482, the Supreme Court had the occasion to consider the ordinary
connotation of the words officiating and temporary. It observed that according
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to its ordinary connotation, the word 'officiating' is generally used when a
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servant having held one post permanently or substantatively is appointed to a
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post in a higher rank, but not permanently or substantatively, while still retaining
his lien on his
substantive post i.e. officiating in that post till his confirmation. In contrast, the
word 'temporary' usually denotes a person appointed in the Civil Service for the
first time and the appointment is not permanent but temporary i.e. for the time
being with no right to the post.
In case of Meera Messry (Doctor) Vs. S.R. Mehrotra (1998) 3 SCC
88, it is held that persons appointed on adhoc or casual or temporary or stop-
gap basis do not have any right to hold any post and have no right to be
absorbed in service because they are not having any right to the post.
Therefore, the mere fact of such appointment does not vest in such persons any
right to be absorbed in regular or permanent service. In other words, no right
accrues in their favour to be regularized in service.
When tested on the basis of the aforesaid legal pronouncements then the
meaning and import of words 'temporary' 'officiating' or 'permanent' is to be
seen in the context of the appointment to the post and in a cadre and that these
terms cannot be viewed in isolation.
Thus, import of the judgment in the case of M.L.Kalia (supra) is that a
holder of a post irrespective of its capacity is entitled to keep the age of
superannuation as is prescribed in rule 56(A). There is no reference to
officiating service in sub rule (1) of FR56 which has been amended vide M.P.
Shashikiya Sewak (Adhivarshiki-Ayu) Sanshodhan
Adhiniyam, 1987. Law laid down by Division Bench of this Court in the
case of State of M.P. and others Vs. Jeevaram decided by this Court at
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Gwalior Bench on 8.3.2018 in W.A.No.150/2011 , is relevant on the subject
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inasmuch as similar issue was presented before the Division Bench being
aggrieved of the order of the Single Judge passed in W.P.No.2197/2010(S) that
as to whether a mate employeed in the Water Resources Department is entitled
to his retirement age as 62 years as per the provisions of Shashikiya Sewak
(Adhivarshiki-Ayu) Tritiya Sanshodhan Adhyadesh, 1998.
Hon'ble the Division Bench of this Court held that the workman is not a
member of work charged and contingency paid establishment; but, was a daily
wager and, therefore, not entitled to enhanced age of
retirement at 62 years. It is held that unless a person claiming such status is a
member of work charged and contingency paid establishment he is not entitled
to continue in service upto the age of 62 years, as provided to a class IV
employee of the State in accordance with the provisions of M.P. Shashikiya
Sewak (Adhivarshiki-Ayu) Sanshodhan Adhyadesh, 1998.
Judgment in the case of Jeevaram (supra) has discussed the law laid
down in the case of Vishnu Mutiya and others Vs. State of M.P. and
others, reported in 2006(1) M.P.L.J. 23 and has held that only those
Gangman whose services is governed by the rules applicable to the M.P. Work
Charged and Contingency Paid Employees Recruitment and Condition of
Service Rules, 1976, are entitled to continue in service upto the age of 62 years
at par with class IV employees of the State but said judgment will not be
applicable to the daily wage employees as they stand on a different footing.
Division Bench of this Court affirmed the decision of the Single Judge in case
o f Mathura Prasad Yadav Vs. Secretary, State of M.P., reported in
2010(3) M.P.L.J. 323 inasmuch as a daily wager is not entitled to claim
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particular age limit for continuance in service and the Department or the Govt. is
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at liberty to fix the age of a daily wager to continue in service.
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In fact, principles of statutory interpretation are unambigiuous. The
primary principle of interpretation is that a Constitutional or statutory provision
should be construed "according to the intent of they that made it" (Coke). In
case of Chief Justice of Andhra Pradesh Vs. L.VA. Dixitulu, AIR 1979 SC 193,
it is held that if the language or the phraseology employed by the legislation is
precise, plain and thus, by itself, proclaims the legislative intent in unequivocal
terms, the same must be given effect to, regardless of the consequences that
may follow.
In case of P.K.Unni Vs. Nirmala Industries, reported in 1990(1)
SCR 482 (488), it is held that the court cannot rewrite, recast or reframe the
legislation for the very good reason that it has no power to legislate. The power
to legislate has not been conferred on the courts. The courts cannot add words
to a statute or read words into it which are not there.
In view of such facts when there are no words like temporary, officiating
or permanent in FR56 then no meaning can be supplied to such rule so to fill
the lacuna. Looking to the fact that Govt. Circular dated 7.10.2016 neither
provides for treating daily wagers for whom said circular has been issued to be
members of the work charged and contingency paid establishment nor treats
them to be regular employees holding a post so to make them Govt. Servant
then merely because FR3 carves out an exception in regard to Govt. Servants
whose conditions of service are governed by Army or Marine Regulations will
not mean that petitioner shall be covered by FR2 unless it is shown that he is a
Govt. Servant whose pay is debitable to civil estimates in India/ State. It is
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equally true as has been held in the case of Chandra Prakash Tiwari Vs.
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Shakuntala Shukla, reported in AIR 2002 SC 2322 that a statutory provision
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covering particular field cannot be held repealed by general provision enacted
later. Thus, a Govt. Circular dated 7.10.2016 shall not supersede the statutory
provisions contained in fundamental rules.
In the case of P.M.Latha Vs. State of Kerala (2003)3 SCC 541 it is
held that equity and law are twin brothers and law should be applied and
interpretted equitably; but, equity cannot override written or settled law.
In the case of Union of India Vs. Rajiv Kumar, reported in AIR
2003 SC 2917 it is held that there are two principles of reading a statute namely
casus omissus and the other is reading of statute as a whole. Under the first
principal, a casus omissus cannot be supplied by the court except in the case of
clear necessity and when reason for it is found in the four corners of the statute
itself.
When tested on the touchstone of said principles and also on the
touchstone of law laid down in the case of Jeewaram (supra) so also the law
laid down in the case of Ram Naresh Rawat (supra), I am of the
opinion that since judgments/orders of coordinate Benches have not taken into
consideration the aforesaid aspects of existing legal provisions as contained in
FR56 so also the interpretation of statutes, the petitioner is not entitled to
enhanced age of superannuation in terms of M.P. Shashikiya Sewak
(Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2018, as he is not a holder of a
post so to classify him as a Govt. Servant whose pay is debitable to civil
estimates in India. There is also no mention in the circular dated 7.10.2016 or in
the order of permanent classification that provisions of FR will be applicable.
Accordingly, both these writ petitions fail and are hereby dismissed.
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(VIVEK AGARWAL)
JUDGE
ts
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Date: 2023.05.04 19:57:21 IST
