Radheshyam Barve vs Secretary State Of M.P. And 4 Ors.
2024 Latest Caselaw 15077 MP

Madhya Pradesh High Court

Radheshyam Barve vs Secretary State Of M.P. And 4 Ors. on 21 May, 2024

Author: Pranay Verma

Bench: Pranay Verma

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA
                                                 ON THE 21 st OF MAY, 2024
                                             WRIT PETITION No. 8120 of 2013

                           BETWEEN:-
                           RADHESHYAM BARVE S/O SHRI BAHADUR LAL BARVE,
                           AGED ABOUT 61 YEARS, OCCUPATION: RETIRED GRAM
                           SAHAYK, R/O PATEL COLONY, DASHHARA MAIDAN,
                           BARWAHA, TEHSIL BARWAHA, DISTRICT KHARGONE
                           (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           ( BY SHRI L.C.PATNE - ADVOCATE)

                           AND
                           1.    THE STATE OF M.P. THROUGH SECRETARY OF
                                 THE GOVERNMENT OF M.P., DEPARTMENT OF
                                 PANCHAYAT AND     RURAL DEVELOPMENT,
                                 VALLABH BHAWAN, MANTRALAYA, BHOPAL
                                 (MADHYA PRADESH)

                           2.    THE      COMMISSIONER,      PANCHYATRAJ
                                 DIRECTORATE, GOVT. OF MP 1, ARERA HILLS,
                                 ADMINISTRATIVE    REGION,   TILHANSANGH
                                 PARISAR, BHOPAL (MADHYA PRADESH)

                           3.    THE   COLLECTOR (PANCHAYAT),           DISTRICT
                                 KHARGONE, (MADHYA PRADESH)

                           4.    THE   C.E.O. JILA PANCHAYAT,        KHAROGNE,
                                 (MADHYA PRADESH)

                           5.    THE CHIEF EXECUTIVE OFFICER OF JANPAD
                                 PANCHAYAT, KHARGONE, (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                           (BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)

                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 22-05-2024
14:36:39
                                                                     2
                                                                      ORDER

By this petition the petitioner has prayed for the following reliefs:

This Hon'ble Court may graciously be pleased-

(a) to call for the relevant records of the case from the respondents;

(b) to command the respondents to consider the case of the petitioner for his absorption on the post of Gram Sahayak with effect from 1/2/1982 and to treat him as absorbed on the aforesaid post with effect from 1/2/1982 by extending him all consequential and monetary benefits including arrears of difference of salary, in view of the law laid down by this Court in the case of Jagdish Chandra sharma vs. State of MP and others, by a writ of mandamus or any other appropriate writ, direction or order;

(c) to allow this petition with costs;

(d ) to pass such other order(s) as may be deemed appropriate in the facts and circumstances of the case, to grant relief of the petitioner.

2. At the outset, learned counsel for the petitioner has brought to the notice of this Court an order dated 25.01.2024 passed in W.P. No.5285 of 2022 [Meharban Ali and others vs. State of M.P. and others] to contend that identically situated persons have been granted the very same relief which has been prayed for by the petitioner in this petition. The relevant part of the order is reproduced as under:

"02. Draped in brevity, the relevant facts are that petitioners No.1 & 2 are retired Panchayat Sahayak and petitioner No.3 is legal heir of Ranglal Gehlod, who also retired as Gram Sahayak. According to the petitioners, they were appointed on the post of Gram Panchayat Sahayak vide orders dated 13.03.1970, 17.06.1966 and 12.01.1962 respectively. Thereafter, they were absorbed on the post of Gram Sahayak vide order dated 01.02.1982. After attaining the age of superannuation, they all retired from the post of Gram Sahayak.

03. Similarly placed Gram Sahayak approached this Court entitlement of consequential benefits from the date of initial appointment to the post of Gram Panchayat Secretary in light of the judgment delivered in the case of The State of Madhya Pradesh & Others v/s Smt. Champa Soni & Another reported in 2001 (1) M.P.H.T. 208 (DB). The similarly situated persons preferred writ petitions before this Court, which were disposed of by directing the respondents to decide the petitioners' representation within six weeks. Against the said order, a writ appeal was preferred and the same was dismissed. Thereafter, a contempt petition was filed and finally vide orders dated 28.04.2014, 22.09.2020 and 12.01.2015, the respondents have rejected their claim. Hence, the present petition is before this Court.

04. Learned counsel for the petitioners submits that similar issue has been decided by this Court vide order dated 17.01.2020 in the case of Jhamaklal & Others v/s The State of Madhya Pradesh & Others (Writ Petition No.1715 of 2014). Jhamaklal was also absorbed in the services of Panchayat Sahayak vide order dated 01.02.1982.

05. After notice, respondents filed a reply by submitting that in light of the Circular dated 25.01.1982, the petitioners were appointed to the post of Gram Sahayak. They were not absorbed on the post of Gram Sahayak, therefore, their past services are not liable to be counted. The aforesaid appointment was done in view of the Circular dated 25.01.1982, whereby 2100 posts of Gram Sahayak were created and filled from the already working Gram Panchayat Sachiv. Learned Government Advocate has placed reliance upon a judgment delivered by the Division Bench in the case of Vichitra Singh Hoda v/s The State of

Madhya Pradesh & Others (Writ Appeal No.702 of 2006), in which it has been held that Panchayat employees are entitled for pension under the provisions of law or the pension Scheme. Rule 12 of the Pension Rules provides for commencement of qualifying service which makes it clear that the qualifying service of Government servant shall commence from the date he takes charge of the post to which he is first appointed, either substantially or in an officiating or temporary capacity. Therefore, the writ petition is liable to be dismissed.

06. Learned counsel for the petitioners has also placed reliance upon a judgment delivered by the Division Bench in the case of The State of Madhya Pradesh & Others v/s Madhavlal & Others (Writ Appeal No.652 of 2020) dated 28.08.2020, whereby the the order passed by the Writ Court directing for counting the past service for pensionary benefits has been upheld. Order dated 28.08.2020 is reproduced below:-

"By this appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellants have challenged the order of the learned Single Judge dated 6.12.2019, whereby the Writ Petition No.1101/2014(s) along with other connected writ petitions has been allowed and the learned Single Judge has directed the appellants to take into account the past services of the respondents for the purpose of pensionary benefit. The respondents had filed the Writ Petition No.1101/2014 with the plea that they were appointed as Panchayat Secretary in District Ujjain on 5.2.1952, 17.2.1962 and 30.6.1973 respectively. Thereafter their services were absorbed as Gram Sahayak vide order dated 1.2.1982 and they had retired on reaching the age of superannuation. The respondents had raised the plea in the writ petition that they were entitled to counting of service from the date of appointment as Panchayat Secretary till their absorption as Gram Sahayak for the purpose of the pensionary benefit. Learned single judge after taking note of the order dated 30.7.2007 passed in WA No.328/2006 has reached to the conclusion that the respondents are entitled to the benefit

flowing from the order passed by the Division Bench in WA No.328/2006 and accordingly has issued a direction to the appellants to take into account the past services of the respondents.

Learned counsel for the appellants submits that the Division Bench of this Court in the matter of Vichitra Singh Hoda Vs. State of M.P. and others reported in 2013(2) MPLJ 170 has taken a different view, therefore, the respondents are not entitled to counting of their service prior to absorption as Gram Sahayak.

Having heard the learned counsel for the appellant and on perusal of the record, it is notic ed that identical issue had come up before the Division Bench at Gwalior in WA No.577/2019 in the case of State of M.P. and others Vs. Mehmood Khan and others, wherein the Division Bench by order dated 16.4.2019 after considering the earlier judgment in the case of Vichitra Singh Hoda (supra) has held as under:-

"Shri Pratip Visoriya, learned Govt. Advocate for the appellants/State.

Shri Shivendra Singh Raghuvanshi, learned counsel for the respondents.

This Writ Appeal has been filed by the State being aggrieved by order dated 29.07.2016 passed by the learned Single Judge, in W.P. No.4413/2011 (Mehmood Khan & Ors. Vs. State of M.P. & Ors.), whereby Writ Petition has been allowed directing the respondents (appellants herein) to revise the pension and pensionary benefits payable to the petitioners taking into consideration the initial date of their appointment as Group Secretaries in the Panchayat Department, who thereafter continued as Panchayat Secretaries and ultimately absorbed in the services of Panchayat Department as Village Assistants within six months from the date of submission of certified copy of the said order.

2. Learned Govt. Advocate for the State submits that the post of Group Secretary was sanctioned by the Collector (Panchayat Mandal), Gwalior and such post was not sanctioned by the State and such post was not included in the hierarchy of the Department of Panchayat and Social Services. It is submitted that post of Group Secretary was sanctioned within the setup of Gram Panchayat, which is local self institution and respondents were not given any appointment by the State. It is submitted that consequent to decision taken by the State Government to appoint Panchayat Secretaries by creating 2100 new posts of Gram Sahayak in 1982, persons, who were belonging to erstwhileregions of Madhya Bharat and Bhopal and who

were earlier appointed as Group Secretaries were given appointment on the post of Gram Sahayak vide order dated 05.02.1982. Therefore, such respondents are not entitled to count their past services as Group Secretaries for the purpose of computation of qualifying service for pension.

3. Reliance has been placed on the judgment of Division Bench of this Court in the case of Vichitra Singh Hoda Vs. State of M.P. and others as reported in (2013) 2 MPLJ 170 and placing reliance on such judgment of this High Court, it is submitted that under similar facts Division Bench of this High Court had declined interference holding that the benefit of qualifying services was rightly extended to said petitioners w.e.f. 01.02.1982 and such employees are not entitled to get the services rendered by them in Panchayat, counted for the purpose of qualifying service for pension.

4. Shri Shivendra Singh Raghuvanshi, learned counsel for the respondents on the other submits that prior to decision rendered by Division Bench of this Court in case of Vichitra Singh Hoda (Supra), another Division Bench of this Court in the case of State of M.P Vs. Ramkumar Shrivastava, [W.A. No.524/2006] had an occasion to deal with similar issue and placing reliance on the judgment in the case of C.A. Bhakre Vs. State of M.P. and others as reported in 1987 MPLJ 509, wherein services of Municipal teachers was absorbed in the Government Service and this High Court had held that Municipal teachers, who were absorbed in the Government service are entitled to pensionary benefits by counting their previous service. Similarly, reliance was placed on the Division Bench decision of this Court in the case of State of M.P. Vs. Champa Soni and another as reported in 2001(2) MPLJ 333, wherein persons, who were initially appointed in Integrated Women and Child Development Project, established by the State and were absorbed in the Department of Panchayat and Social Welfare of the State of Madhya Pradesh, on abolition of the Project were held to be entitled for counting of their past service on the ground that they were absorbed in the State Government services, and therefore, they are entitled for counting their past services. On the basis of such decisions, Writ Appeal filed by the state was dismissed and the order of learned Single Judge passed, relying upon Division Bench decision of this Court in case of Panchayat Karmachari Sangh Vs. State of M.P. as reported in 1985 JLJ 609 has been upheld. It is submitted that in case of Vichitra Singh Hoda (supra) judgment of Division Bench has not been taken into consideration and therefore, earlier judgment being a binding precedent, it will prevail over the judgment rendered in case of Vichitra Singh Hoda (Supra).

5. After going through the record and hearing arguments, this

Court is of the opinion that earlier judgment passed in W.A. No.524/2006 (State of M.P. & Ors. Vs. Ramkumar Shrivastava & Ors.) has a binding effect on Coordinate Bench and since judgment was not considered by a later Coordinate Bench in case of Vichitra Singh Hoda (Supra) judgment rendered in the case of Ramkumar Shrivastava (Supra) being binding shall have precedential value over the judgment rendered in case of Vichitra Singh Hoda (Supra), and therefore in terms of the order dated 30.07.2007 when under similar facts and circumstances, Writ Petition of State was dismissed and such order of the Court was upheld even by the Hon'ble Supreme Court in Civil Appeal No. 4427/2008 and SLP (c) No. 7713/2005 vide order dated 12.01.2012, present appealdeserves to be dismissed and is hereby dismissed.

No order as to cost."

The present case is undisputedly squarely covered by the above judgement and it stands on the same footing, therefore, in view of the above order of the Division Bench of this Court in the case of Mehmood Khan (supra), we are of the opinion that the respondents are entitled to count their services as Panchayat Secretary rendered prior to their absorption as Gram Sahayak for the pensionary benefit. Therefore, no case for interference in the impugned order of the learned Single Judge is made out. The appeal is accordingly dismissed."

[Emphasis Supplied]

07. In view of the above, Writ Petition stands allowed. The order dated 28.08.2020 passed in W.A. No.652 of 2020 shall be applicable mutatis mutandis in the present case also."

3. Learned counsel for the respondent/State has not disputed that the petitioner is identically placed to the petitioner of the aforesaid writ petition but has submitted that against the order dated 25.01.2024, a review petition has been preferred. However, he has fairly submitted that as on date no order has been passed in the review petition and the order dated 25.01.2024 still stands. The same is hence still very much in force.

4. Thus, in view of the above, the writ petition stand allowed. The order dated 28.08.2020 passed in W.A. No.652 of 2020 shall be applicable mutatis mutandis in the present case also.

(PRANAY VERMA) JUDGE jyoti