Madhya Pradesh High Court
Madhorao Asole vs The State Of Madhya Pradesh on 16 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16 th OF MAY, 2024
WRIT PETITION No. 28861 of 2021
BETWEEN:-
MADHORAO ASOLE S/O LATE NAMAJI ASOLE, AGED
ABOUT 65 YEARS, OCCUPATION: RTD.AMIN BEHIND OF
LAHRI ASHRAM TAMTHA TOLA, TEH. ADN
DSIT.GONDIYA (MAHARASHTRA)
.....PETITIONER
(BY SHRI A.P.PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY DEPTT. FINANCE VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. CHIEF ENGINEER DEPARTMENT OF WATER
RESOURCE DIVISIONAL OFFICE SOENI (MADHYA
PRADESH)
3. SUPERINTENDENT ENGINEER VANGANGA
CIRCLE DISTT-BALAGHAT (MADHYA PRADESH)
4. EXECUTIVE ENGINEER WATER RESOURCE SUB
DIVISION DISTT-BALAGHAT (MADHYA PRADESH)
5. EXECUTIVE ENGINEER WATER AND RESOURCE
VAN GANGA DIVISION DISTT-BALAGHAT
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner, who was appointed as a daily wager, has filed this writ
petition seeking the benefit of computation of the qualifying services rendered
by him as daily wager for the purpose of pension etc.
Learned counsel for the petitioner places reliance on the Division Bench
Judgment of this High Court in Shrikrishna Shrivastava versus State of
Madhya Pradesh & Others 2003 (4) M.P.L.J 376 so also the judgment of
the Apex Court in Civil Appeal No.4792/2022 (Arising out of S.L.P (C)
No.18830/2021) [Balo Devi versus State of Himachal Pradesh] decided
on 18.7.2022.
As far as the judgment of Shrikrishna Shrivastava versus State of
Madhya Pradesh & Others (supra) is concerned, that is a case governed by
the provisions of the Madhya Pradesh Irrigation Department Work Charged and
Contingency Paid Employees Recruitment and Conditions of Service Rules,
1997 and the Madhya Pradesh (Work Charged and Contingency Paid
Employees) Pension Rules, 1979 and, therefore, the ratio of the aforesaid
judgement is not applicable to the facts & circumstances of the present case
because the petitioners were daily wagers and were never part of any Work
Charged Establishment and their services too have not been regularized in the
Work Charged Establishment.
The ratio of law laid down by the Apex Court in Balo Devi versus State
of Himachal Pradesh (supra) is on different parameter. In that case, the
husband of Balo Devi was regularized with effect from 1.1.2000. He retired on
28.2.2006 and thereafter he expired in 2010, therefore the question dealt with by
the Apex Court in that case is with regard to admissibility of pension to the
widow and that being a differing context and the petitioner had admittedly not
rendered the requisite qualifying service, is not entitled to grant of pension in
terms of the provisions as contained in the relevant Pension Rules.
Reliance is placed by learned counsel for the petitioner on the decision of
a Coordinate Bench of this High Court in W.P. No.16878/2019 decided on
16/12/2010 wherein after quoting the provisions as contained in Rule 12(2) of
the M.P. Civil Services (Pension) Rules, 1976, the Court directed to settle the
claim of the petitioner for grant of pensionary benefits and after considering the
same in the light of the law laid down by Division Bench of this High Court in
State of Madhya Pradesh versus Smt. Ramrati Bai (W.A. No.682/2009),
directed to settle the claim of the petitioner within a period of three months from
the date of receipt of certified copy of the order.
However, the fact of the matter is that Rule 3(p) of the Pension Rules,
1976 deals with qualifying service. It means the period between the date of
joining pensionable service under the State Government and the retirement
therefrom, which shall be taken into account for the purpose of the pension and
gratuity admissible under these rules and includes the period which qualifies
under any other order or rule for the time being in force.
Thus, it is evident that qualifying service starts from the date when a
person joins a pensionable service. Joining of a daily wage employment being
not a pensionable service, will not fall within the realm of qualifying service and
this vital aspect has been overlooked by the Coordinate Bench of this High
Court while deciding the W.P. No.16878/2010 on 06/12/2010.
Thus, this Court has no hesitation to hold that isolated reference to Rule
12 (2) of the Pension Rules without reference to the definition of qualifying
service as given in Rule 3(p) is incomplete and admittedly the petitioner being
not a person, who was appointed in 1995, to a pensionable service is not
entitled to count that period of daily wage engagement for any of the benefit of
pensionable service, therefore, it cannot be said that judgment rendered by a
Coordinate Bench of this High Court will be a binding precedent for this Court
especially when it has not taken into consideration the definition of the
qualifying service as given in Rule 3(p) of the Pension Rules, 1976.
I n Chandrakanta Vs. State of M.P., 2007 (2) MPLJ 339, this
Hon'ble High Court has held that the date of joining to a post on which the
employee is first appointed, either substantively or officiating or temporarily and
takes over the charge on that post and retired therefrom shall be, the period of
service on that post, and the date of taking over the charge till attaining the age
of superannuation be treated as qualifying service.
Learned Government Advocate for the State submits that the order dated
09/11/2010 passed by the Division Bench of this High Court is uploaded in the
PDF form and the facts of that case are that respondent was appointed purely
on temporary basis against a Class-IV post in the District Jail, Seoni vide order
dated 20/08/1979 and in view of said facts, the said order has been passed.
In the present case, the petitioner was not appointed on temporary basis
against a Class-IV or Class-III post in the establishment of the respondents,
therefore, the ratio of the judgment in the case of Ramrati Bai (supra) has no
application to the facts of the present case. The judgment rendered in W.A.
No.682/2009- Ramrati Bai (supra) is distinguishable and the judgment
rendered by Coordinate Bench in W.P. No.16878/2010 is not applicable to the
facts & circumstances of the present case and, therefore, the petitioner is not
entitled to any relief.
Accordingly, this writ petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
amit
