Madhya Pradesh High Court
R.S.Pathak vs The State Of Madhya Pradesh on 28 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28 th OF MAY, 2024
WRIT PETITION No. 7692 of 2022
BETWEEN:-
R.S.PATHAK S/O SHRI R.C.PATHAK, AGED ABOUT 63
Y E A R S , OCCUPATION: RETIRED GOVERNMENT
SERVENT R/O H.NO.11/682, INDIRA NAGAR, DISTRICT
REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DEEPAK SAHU - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPALSECRETARY WATER RESOURCE
DEPARTMENT VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. ENGINEER IN CHIEF WATER RESOURCE
D EPA R TM EN T NARMADA BHAWAN TULSI
NAGAR DISTRICT BHOPAL (MADHYA PRADESH)
3. CHIEF ENGINEER BODHI WATER RESOURCE
DEPARTM ENT SWARA BHAWAN KOLAR ROAD
BHOPAL DISTRICT BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SOURABH SONI - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Present petition under Article 226 of the Constitution of India has been
filed seeking the following relief(s) :-
"(i) To call for the records pursuant to the instant subject matter for
kind perusal of this Hon'ble Court.
(ii) To issue writ in the nature of certiorari wherein directing the
respondent authority to count the service rendered from 1983 to 1990
under work-charged establishment as qualifying service and
redetermine the pension and other financial emoluments and salary
with interest 18% during the period of 1983 to 1990 and arrears.
(iii) To quash the impugned order dated 28.02.2022 passed by the
respondent no.2 by which the representation of the petitioner has
been rejected.
(iv) To direct the respondent authority to provide the pay to the
petitioner as per the pay scale mentioned in the appointment order
dated 18.05.1983 from the date of appointment till date of
regularization and interest 18% in the retiral dues and Hon'ble Court
has been direct to issues revised PPO then granted benefit.
(v) Any other relief which this Hon'ble Court may deem just and
proper in the facts and circumstances of the case may kindly be issued
in favour of the petitioner along with cost of the petition."
2. It is the case of the petitioner that he was initially appointed on the post of
Assistant Geologist in the pay-scale of 860-20-900-25-1000-30-1330 under the
Work-Charged Establishment. He was regularized vide order dated 01.12.1990
on the post of Assistant Geologist. The petitioner stood retired in the year 2017.
After retirement, he has submitted a representation for counting of past services
rendered by him under the Work-charged Establishment for the purpose of
determination of pension and other retiral dues. It is submitted that the counting
of past services rendered by an employee if his initial appointment was under
Work Charged Contingency is no more res integra as has been settled by the
Hon'ble Supreme Court in the case of Prem Singh Vs. State of Uttar
Pradesh and others reported in (2019) 10 SCC 516. He has already submitted
a detailed representation to the respondent/authorities for consideration of his
case for grant of post retiral benefits by counting his previous services. An
innocuous prayer is made to direct the respondents to consider the
representation and decide the same considering the judgment passed by the
Hon'ble Supreme Court in the aforesaid case within a stipulated time frame.
3. Counsel appearing for the respondents/State could not dispute the fact that
the controversy has been put to rest by the Hon'ble Supreme Court in the case
of Prem Singh (supra). In such circumstances, he has no objection in getting
the representation decided at an early date.
4. Heard learned counsel for the parties and perused the record.
5. The Hon'ble Supreme Court in the case of Prem Singh (supra) has held
as under:
"31. In view of the note appended to Rule 3(8) of the 1961 Rules, there
is a provision to count service spent on work charged, contingencies
or non pensionable service, in case, a person has rendered such
service in a given between period of two temporary appointments in
the pensionable establishment or has rendered such service in the
interregnum two periods of temporary and permanent employment.
The work-charged service can be counted as qualifying service for
pension in the aforesaid exigencies.
32. The question arises whether the imposition of rider that such
service to be counted has to be rendered in-between two spells of
temporary or temporary and permanent service is legal and proper.
W e find that once regularization had been made on vacant posts,
though the employee had not served prior to that on temporary basis,
considering the nature of appointment, though it was not a regular
appointment it was made on monthly salary and thereafter in the pay
scale of work-charged establishment the efficiency bar was permitted
to be crossed. It would be highly discriminatory and irrational
because of the rider contained in Note to Rule 3(8) of 1961 Rules, not
to count such service particularly, when it can be counted, in case such
service is sandwiched between two temporary or in-between
temporary and permanent services. There is no rhyme or reason not to
count the service of work-charged period in case it has been rendered
before regularisation. In our opinion, an impermissible classification
has been made under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive such employees benefit of the
qualifying service. Service of work-charged period remains the same
for all the employees, once it is to be counted for one class, it has to be
counted for all to prevent discrimination. The classification cannot be
done on the irrational basis and when respondents are themselves
counting period spent in such service, it would be highly
discriminatory not to count the service on the basis of flimsy
classification. The rider put on that work-charged service should have
preceded by temporary capacity is discriminatory and irrational and
creates an impermissible classification.
33. As it would be unjust, illegal and impermissible to make aforesaid
classification to make the Rule 3(8) valid and non discriminatory, we
have to read down the provisions of Rule 3(8) and hold that services
rendered even prior to regularisation in the capacity of work-charged
employees, contingency paid fund employees or non- pensionable
establishment shall also be counted towards the qualifying service
e v e n if such service is not preceded by temporary or regular
appointment in a pensionable establishment.
34. In view of the note appended to Rule 3(8), which we have read
down, the provision contained in Regulation 370 of the Civil Services
Regulations has to be struck down as also the instructions contained
in Para 669 of the Financial Handbook.
35. There are some of the employees who have not been regularized in
spite of having rendered the services for 30-40 or more years whereas
th e y have been superannuated. As they have worked in the work-
ch a rg ed establishment, not against any particular project, their
services ought to have been regularized under the Government
instructions and even as per the decision of this Court in Secretary,
State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in
the said decision has laid down that in case services have been
rendered for more than ten years without the cover of the Court's
order, as one time measure, the services be regularized of such
employees. In the facts of the case, those employees who have worked
for ten years or more should have been regularized. It would not be
proper to regulate them for consideration of regularisation as others
have been regularised, we direct that their services be treated as a
regular one. However, it is made clear that they shall not be entitled
to claiming any dues of difference in wages had they been continued
in service regularly before attaining the age of superannuation. They
shall be entitled to receive the pension as if they have retired from the
regular establishment and the services rendered by them right from
the day they entered the work-charged establishment shall be counted
as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits
Rules, 1961, we hold that services rendered in the work-charged
establishment shall be treated as qualifying service under the
aforesaid rule for grant of pension. The arrears of pension shall be
confined to three years only before the date of the order. Let the
admissible benefits be paid accordingly within three months.
Resultantly, the appeals filed by the employees are allowed and filed
by the State are dismissed."
6. A Division Bench of this Court recently in the case of State of M.P. and
others vs. Shri Indra Narayan Singh (W.A.No.99 of 2024) vide order dated
05.02.2024 has considered the similar controversy and has held that a Worked
Charged and Contingency Paid Employee is entitled for counting of his past
services rendered on contingency basis prior to regularization of service for the
purpose of counting of pension.
7. In such circumstances, when the controversy is no more res integra, this
Court deems it appropriate to dispose off the writ petition with a direction to
the petitioner to submit a detailed representation along with the copy of the
judgment to the competent authority within a period of ten days and in case
such a representation is submitted, the competent authority is directed to
consider and decide the representation taking into consideration the judgment
passed by the Supreme Court as well as the Division Bench of this court in the
aforesaid cases and after giving audience to the petitioner may pass a self-
contained speaking order. The aforesaid exercises be completed within a period
of three months from the date of receipt of certified copy of this order. If the
petitioner is found entitled for the benefits as claimed by him, then the arrears be
calculated and the payments be made to the petitioner within a further period of
three months.
8. With the aforesaid, the writ petition stands disposed off. No order as to
costs.
(VISHAL MISHRA)
JUDGE
sj
