Madhya Pradesh High Court
Smt. Harsha Naugarhiya vs The State Of Madhya Pradesh on 5 August, 2024
1 WP-25519-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 5 th OF AUGUST, 2024
WRIT PETITION No. 25519 of 2021
SMT. HARSHA NAUGARHIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Akash Choudhary - Advocate for the Petitioner.
Shri Vijay Kumar Shukla - Panel Lawyer for the Respondent/State.
ORDER
The present petition has been filed challenging the inaction of the
respondents in not giving benefit of pension to the petitioner in accordance
with M.P. Civil Service (Pension) Rules, 1976 and by treating the petitioner
to be covered by amendment to the said Rules whereby Rule 2 (ii) (g) has
been inserted by amendment notification dated 02.04.2005 and as per that
amendment notification, the Govt. Servants appointed on or after 01.01.2005
have been excluded from applicability of M.P. Civil Service (Pension)
Rules, 1976 and thereafter covered under National Pension Scheme.
2 . Learned counsel for the petitioner submits that the matter involves
definition of the word "appointed" whether the word appointed would mean
the date of appointment or taking charge as interpreted by the State Govt.
3 . The brief facts are that the petitioner was issued an order of
appointment dated 16.12.2001 Annexure P-1 whereby the petitioner was
ordered to be appointed on compassionate ground on the post of Research
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Assistant and posted under Chief 1 WP-25519-2021 Engineer, Bodhi, Water
Resources Department, Bhopal. The posting order was issued by the Director
of the said Institute under Water Resources Department vide Annexure P-2
and the petitioner joined duty on 06.01.2005. The petitioner has been
intimated by order Annexure P-3 by the Finance Department that the date of
appointment of Government Servant is date of taking over charge. Thus, the
date of appointment of petitioner is deemed to be 06.01.2005 and
w.e.f.01.01.2005. The contributory pension scheme i.e, N.P.S. has been in
force hence, petitioner would be deemed to be member of N.P.S. and not
covered under Pension Rules.
4 . Learned counsel for the State has contended that the petitioner has
joined service on 06.01.2005 and date of appointment will be counted only
from 06.01.2005 and not from any prior date.
5 . Heard.
6. The sole question that arises for determination in the present case is
what would be the meaning of the term "appointed" whether it would mean
the date of appointment or whether it would mean the date on which the
employee has taken charge. The word "appointed" is not defined in the
Service Rules as framed by the State of Madhya Pradesh nor they are defined
in the fundamental Rules as applicable to the State of Madhya Pradesh. The
stand of the State is that "appointed" means the date on which employee has
taken over charge.
7 . The amendment in question is as under:-
"(g) Government servants appointed on or after 1st January, 2005 to
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the services and posts in connection with the affairs of the State, either
temporarily or permanently."
It is evident from bare reading of the aforesaid 2(g) that Govt. Servant
appointed after 01.01.2005 either on temporary or permanent basis shall not
be governed under the Pension Rules.
8 . Learned counsel for the petitioner had placed heavy reliance on
judgment passed by a co-ordinate bench in W.P.No.13302/2013 in which the
question that arose for determination was that the advertisement for the post
was issued in the year 2003 and the appointment order was issued on
25.08.2003 and they were appointed as apprentice for a period of two years
and after completion of two years apprenticeship and two years probation
period, they were confirmed in service after 01.01.2005.
9 . This Court relying on clarification dated 17.10.2006 issued by the
State Govt. in relation to those employees who have taken charge in service
prior to 01.01.2005 held that the petitioners therein should be treated in
service from 25.08.2003 i.e, initial date of appointment. The said judgment is
not relevant to the facts of the case because in the said case, the employees
had been appointed in the service and taken charge prior to 01.01.2005 and
later on, they were confirmed and their services were counted for the
purpose of coverage under Pension Rules.
10. In the present case, the dispute is actually construing the date of
appointment as the issuance of order of appointment order or the date of
assuming charge. The date of initial appointment is 16.12.2004 and date of
assuming charge is 06.01.2005.
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11. The Hon'ble Supreme Court had considered some what similar
issue in the case of Amarjit Singh Ahluwalia (Dr) v. State of Punjab, (1975)
3 SCC 503 as under:-
"10. We do not, however, think that the order dated
December 4, 1967 providing that the seniority of
Respondents 3 to 19 shall be reckoned from the date of
their appointment, namely, April 8, 1964 constituted a
departure from the principle of seniority laid down in
clause (2)(ii) of the memorandum dated October 25, 3
WP-25519-2021 1965. The test for determining
seniority in the integrated cadre laid down by clause (2)
(ii) of the memorandum dated October 25, 1965 was the
length of continuous service from the date of
appointment in the group. The appellant contended that
continuous service in a post could commence only when
the incumbent took charge of the post and not earlier
and, therefore, though Respondents 3 to 19 were
promoted under the order dated April 8, 1964, their
continuous service in the posts of promotion in PCMS
Class I did not commence until after April 25, 1964
when they took charge of their respective posts of
promotion and hence the length of their continuous
service in PCMS Class I was less than that of Dr Jagjit
Singh and the appellant in Public Health Service, Class
I. This contention is fallacious in that it fails to give
sufficient importance to the words "from the date of
appointment" and ignores the true meaning and effect of
the order dated April 8, 1964. First let us see what the
words "date of appointment" mean. Are they
synonymous with "date of the order of appointment"?
We think not. An order of appointment may be of three
kinds. It may appoint a person with effect from the date
he assumes charge of the post or it may appoint him
with immediate effect or it may appoint him simpliciter
without saying as to when the appointment shall take
effect. Where the order of appointment is of the first
kind, the appointment would be effective only when the
person appointed assumes charge of the post and that
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would be the date of his appointment. It would be then
that he is appointed. But in a case of the second kind,
which is the one with which we are concerned since the
order dated April 8, 1964, appointed Respondents 3 to
19 to PCMS Class I "with immediate effect", the
appointment would be effective immediately
irrespective as to when the person appointed assumes
charge of the post. The date of his appointment in such
a case would be the same as the date of the order of
appointment. It is, therefore, obvious that so far as
Respondents 3 to 19 were concerned, the date of their
appointment was April 8, 1964 and the length of their
continuous service in PCMS Class I was required to be
reckoned from that date. It is true that Respondents 3 to
19 did not assume charge of their respective posts of
promotion until after April 25, 1964, but that makes no
difference because the length of continuous service is to
be counted from the date of appointment on the
hypothesis that once the appointment is effective the
person concerned is in the post and his service in the 4
WP-25519-2021 post is deemed to have commenced
though under the Rules governing his conditions of
service he may not be entitled to the salary and
allowances attached to the post until he assumes charge
of the post. The continuous service of Respondents 3 to
19 in PCMS Class I, therefore, commenced from April
8, 1964 and since that was longer than the continuous
service of Dr Jagjit Singh and the appellant in Public
Health Service Class I, which commenced only on
April 25, 1964, Respondents 3 to 19 were entitled to be
placed senior to Dr Jagjit Singh and the appellant in the
joint seniority list of the integrated PCMS Class I."
12. The Hon'ble Supreme Court in the aforesaid case
considered the aspect that the date of appointment is not
synonymous with the date of order of appointment.
Hon'ble Supreme Court considered that the order of
appointment may be of three types.
.
1 3 . This Court has considered the present order of appointment in
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backdrop of the aforesaid. The appointment order has been placed on record
as Annexure P-1 which is attached hereto wherein it is mentioned that an
employee has to join within 30 days of receipt of order failing which the
order shall stand automatically cancelled. In condition No.3, it is mentioned
that before assuming charge, certain documents as per list are required to be
produced before the Head Office. The aforesaid clauses 1 to 3 are as under:-
"(1) आदे श ा होने के दनांक से ३० दन के अंदर य द अ याथ नह ं
करते ह तो उनका िनयु आदे श वमेव माना जावेगा।
(2) काय हण करने हे तु या ा भ ा दे य नह होगा।
(3) काय हण करने के पूव िन निल खत माण प कायालय मुख को
े षत करना अिनवाय है ,अ यथा काय हण सूचना उ अिधकार ारा अमा य
कर द जावेगी।"
14. It is evident from perusal of the aforesaid conditions No.1 and 3
that the 5 WP-25519-2021 authority itself has treated the appointment order
and assumption of charge as two different events. The condition No.1 clearly
specifies that if within 30 days of receipt of order if a candidate does not
assume the charge, then the appointment order shall automatically stand
cancelled.
15. It means that the appointing authority has appointed the candidates
with immediate effect because outer limit of 30 days is mentioned in the said
order. The M.P. Fundamental Rules also treat joining as different from
appointment and joining is not treated as synonym of appointment in M.P.
Fundamental Rules. As per Rule 9(10) of M.P. Fundamental Rules, joining
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time is defined as under:- "Joining time means the time allowed to a Govt.
servant in which to join a new post or to travel to or from a Station to which
he is posted."
16. Thus, the intention of the Rule Making Authority is that
assumption of charge would be somewhere within the joining time.
17. In the present case, the joining time as has been laid down by the
appointment order itself is 30 days. Thus, it is evident that the order of
appointment has taken force from 16.12.2004 itself and the petitioner has to
be treated as appointed on 16.12.2004 though, the assumption of charge on
06.01.2005 would be the relevant date for the starting of payment of salary
and allowances attached to the post on assumption of charge.
18. The Hon'ble Apex Court in the aforesaid judgment has held that
the date of appointment and assumption of charge can be two different events
and the intention is to be construed from the appointment order. It has further
been held that assumption of charge is for the purpose of payment of salary
and allowances.
19. In the present case, as already held above, the first paragraph of
appointment Order Annexure P-1 makes it clear that the appointment has
become effective with immediate effect.
20. Learned counsel for the petitioner has also argued on the aspect
that the petitioner was given posting order only on 31.12.2004 vide
Annexure P-2 and she cannot be held at fault this late issuance of order. The
aforesaid aspect is not considered because this Court has already held that the
appointment will become effective with immediate effect and the petitioner
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is deemed to be appointed w.e.f.`16.12.2004 itself.
21. Consequently, the petition is allowed in the following terms:-
1. The impugned order Annexure P-3 is set aside and the
petitioner is held covered under the M.P. Civil Services (Pension)
Rules, 1976 by treating her to be appointed w.e.f.16.12.2004.
2. The petitioner is stated to be a member of N.P.S. This
order would take effect only when the petitioner refunds Employer
Contribution remitted by the State Govt. in N.P.S.(if any) with
interest as applicable on N.P.S. deposits.
3. The State Govt. would not be liable to contribute towards
N.P.S. of the petitioner in future.
22. In view of the aforesaid directions, the petition stands disposed.
(VIVEK JAIN)
JUDGE
veni
