Madhya Pradesh High Court
Smt Anamika Dev vs The State Of Madhya Pradesh on 4 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 4 th OF APRIL, 2025
WRIT PETITION No. 12120 of 2025
SMT ANAMIKA DEV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D.P.Singh - Advocate for petitioner.
Shri Ravindra Dixit - Government Advocate for the State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs :-
"(i) That, the order impugned dated 17.02.2025 passed by the
Respondent no. 4 contained in Annexure - P/1 may kindly be
quashed and the respondents be further commanded to consider
the case of the petitioner for grant of retrial/pensionary benefits
by counting his past services w.e.f. from initial date of
appointment i.e. 22.07.1985, instead date of regularization, in the
interest of justice.
(ii) That, the respondents be further commanded to settle his all
terminal claims by counting his past services i.e. w.e.f.
22.07.1985 and pay difference of arrears including the difference
of pension and pay the same alongwith interest @ 18% p.a., in
the interest of justice.
(iii) That, any other relief which is suitable in facts and
circumstances of the case in favour of the petitioner including the
costs throughout may be granted."
2. The controversy involved in this petition has already been decided
by this Court in the case of Kishor Verma Vs. The State of Madhya Pradesh
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and Others, decided on 12.11.2024 in W.P.No.33851/2024 .
3. This Court in the case of Kishor Verma (supra) has held as under :-
"This petition, under Article 226 of the Constitution of India, has
been filed seeking the following reliefs:-
"i. The respondent be directed to count service period of
petitioner of the period of 06/10/1990 to 19/05/1994.
ii. That all consequential benefits arising out of the same
may be released in favour of petitioner.
iii. That, the pension, gratuity and other retiral dues shall
be recalculated and differential amount may kindly be
directed to be paid along with interest.
Any other relief which this Hon'ble Court deems fit in the
facts and circumstances of the case may also kindly be
granted."
2. It is submitted by counsel for petitioner that initially petitioner
was appointed as a daily-wager in the year 1985 on the post of
Chlorine Tester. Thereafter, he was removed and again was
appointed vide order dated 6/10/1990 on the post of Chlorine
Tester. Then, he was posted under work charged establishment
on the post of Lab Assistant on 20/5/1994. The
respondent/department, vide order dated 21/03/2024 has rejected
the representation of petitioner and denied to count the services
rendered by him as daily wager on the pretext that there is no
provision for counting the services of daily wagers. Thus, it is
the case of the petitioner that services of petitioner from
6/10/1990 to 19/05/1994 i.e. three years and seven months as
daily wager, have not been counted by the
respondent/department.
3. It is submitted that Rule 6 of the Madhya Pradesh (Work
Charged and Contingency Paid Employees) Pension Rules, 1979
(for short "the Rules of 1979") clearly provides that on
absorption of permanent employee, the services rendered w.e.f.
1st January, 1959 onward shall be counted for pension. It is
submitted by counsel for petitioner that thus question of absence
of provision does not arise.
4. Per contra, the petition is vehemently opposed by counsel for
the State. It is submitted that so far as Rule 6 of the Rules of
1979 is concerned, it does not provide that services rendered by
an employee as a daily wager is to be counted for the purposes of
pension. It is submitted that, at the most, it can be said that the
provisions of the Rules of 1979 were made effective from
1/1/1959 and any other interpretation of the said provision would
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amount to legislation, which is not permissible.
5. Heard, learned counsel for the parties.
6. Rule 6 of the Rules of 1979 reads as under:-
"Commencement of qualifying service.- (1) Subject to the
provisions of Chapter III of the Madhya Pradesh Civil
Services (Pension) Rules, 1976 or Section IV of the
Madhya Pradesh New Pension Rules, 1951 as the case may
be, for calculating qualifying service of a permanent
employee who retires as such, the service rendered with
effect from the 1st January, 1959 onwards shall be
counted."
7. Thus, it is clear that the provisions of Rules of 1979 have
been made effective w.e.f. 1/1/1959, or in other words, Rules of
1979 have been given retrospective effect for the purpose of
counting previous services, but does not provide that the services
of a person as a daily wager would also be counted. Furthermore,
there is nothing on record to suggest that petitioner was
appointed as a daily wager after due advertisement, thereby
following the mandate of Article 16 of the Constitution of India.
Any backdoor entry cannot be recognized even indirectly by
directing the Authorities to count the said service for pension
purposes.
8. Furthermore, this question has already been considered by this
Court vide order dated 19/12/2023 passed in the case of Ashok
Kumar Sharma Vs. The State of M.P. & Others in W.P.
No.29982/2023.
9. In the case of Ashok Kumar Sharma (Supra) , this Court
passed the following order:-
"1. This petition under Article 226 of the Constitution of
India has been filed seeking the following reliefs :-
i) Issue a writ of Mandamus commanding the
respondents to produce entire service records of the
petitioner for ready perusal of the Hon'ble High
Court.
ii) Issue a writ of Mandamus commanding the
respondents to count the service period from
12.10.1984 to 07.02.1990 total 5 years 4 months for
the purpose of pension of the petitioner and revised
the pension of the petitioner accordingly and also pay
the arrears, in the interest of justice.
iii) Issue a writ of mandamus commanding the
respondents to consider and decide the representation,
annexure P/7 of the petitioner in accordance with law
in the interest of justice.
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iv) Any other relief/order or directions as this Hon'ble
Court deems fit and proper looking to the facts and
circumstances of the case deemed fit and proper in the
interest of justice may please be awarded along with
the cost of proceedings.
2. It is the case of the petitioner that earlier by order dated
12.10.1984 he was appointed as daily wager and
subsequently he was regularized in service by order dated
5.2.1990 but the service rendered by him from 12.10.1984
to 5.2.1990 has not been counted for pensionary purposes.
3. It is submitted by counsel for the petitioner that non-
counting of service rendered by him as a daily wager is in
violation of judgment passed by the Supreme court in the
case of Ram Kumar Agarwal Vs. State of M.P., reported in
(1995) Suppl. 3 SCC 67 .
4. Per contra, the petition is vehemently opposed by
counsel for the State. It is submitted that the petitioner was
appointed as a daily wager which is evident from the order
dated 5.2.1990, annexure P/2. As per rule 12, 13, 14, 15, 16
of the M.P. Civil Services (Pension) Rules, 1976, the
services rendered by the petitioner as a daily wager are not
to be counted for the pensionary purpose.
5. Heard the learned counsel for the parties.
6. Rule 12 to 16 of the Pension Rules reads as under :-
" 1 2 . Commencement of qualifying service. - (1)
Except for compensation gratuity, a Government
servant's service does not qualify till he has
completed 18 years of age, provided that nothing
contained in this clause shall apply in the case of
persons who were in service on the date of
commencement of these rules and in whose case a
lower age limit has been prescribed. (2) Subject to the
provisions of these rules, qualifying service of a
Government servant shall commence from the date he
takes charge of the post to which he is first appointed
either substantively or in an officiating or temporary
capacity.
13. Conditions subject to which service qualifies. -
(1) The service of a Government servant shall not
qualify unless his duties and pay are regulated by the
Government, or under conditions determined by the
Government. (2) For the purposes of sub-rule (1), the
expression "service" means service against a post
under the Government and paid by the Government
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from the Consolidated Fund of the State which has
not been declared as non-pensionable.
14. Counting of service on probation. - Service on
probation against a post shall qualify.
15. Counting of service as apprentice . - Service as an
apprentice shall not qualify, except in cases where it
qualifies under the pension rules applicable at the time
when the service was rendered.
16. Counting of service on contract. - (1) A person
who is initially engaged by the Government on a
contract for a specified period and is subsequently
appointed to the same or another post in regular
capacity in a pensionable establishment without
interruption of duty, may opt either :
(a) to retain the Government contribution in the
contributory provident fund with interest
including any other compensation for that
service; or
(b) to agree to refund to the Government the
monetary benefits referred to in clause (a) or to
forego the same if they have not been paid to
him and count in lieu thereof the service for
which the aforesaid monetary benefits may have
been payable.
(2) The option under sub-rule (1) shall be
communicated to the Head of Office under intimation
to the Audit Officer within a period of three months
from the date of issue of the order of transfer to
pensionable service, or if the Government servant is
on leave on that day, within three months of his return
from leave whichever is later.
(3) If no communication is received by the Head of
Office within the period referred to in sub-rule (2) the
Government servant shall be deemed to have opted
for the retention of the monetary benefits payable or
paid to him on account of Service rendered on
contract.
7. It is not the case of the petitioner that as a daily wager
they were appointed substantially or in officiating or
temporary capacity. The Supreme Court in the case of
Malook Singh and others Vs. State of Punjab, decided on
28.9.2021 passed in Civil Appeal No.6026- 2028/2021 has
held as under:-
"20. The law on the issue of whether the period of ad
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hoc service can be counted for the purpose of
determining seniority has been settled by this Court in
multiple cases. In Direct Recruits (supra), a
Constitution Bench of this Court has observed:
"13. When the cases were taken up for hearing
before us, it was faintly suggested that the
principle laid down in Patwardhan case [(1977)
3 SCC 399: 1977 SCC (L&S) 391: (1977) 3
SCR 775] was unsound and fit to be overruled,
but no attempt was made to substantiate the
plea. We were taken through the judgment by
the learned counsel for the parties more than
once and we are in complete agreement with the
ratio decidendi, that the period of continuous
officiation by a government servant, after his
appointment by following the rules applicable
for substantive appointments, has to be taken
into account for determining his seniority; and
seniority cannot be determined on the sole test
of confirmation, for, as was pointed out,
confirmation is one of the inglorious
uncertainties of government service depending
neither on efficiency of the incumbent nor on
the availability of substantive vacancies. The
principle for deciding inter se seniority has to
conform to the principles of equality spelt out
by Articles 14 and 16. If an appointment is
made by way of stopgap arrangement, without
considering the claims of all the eligible
available persons and without following the
rules of appointment, the experience on such
appointment cannot be equated with the
experience of a regular appointee, because of the
qualitative difference in the appointment. To
equate the two would be to treat two unequals as
equal which would violate the equality clause.
But if the appointment is made after considering
the claims of all eligible candidates and the
appointee continues in the post uninterruptedly
till the regularization of his service in
accordance with the rules made for regular
substantive appointments, there is no reason to
exclude the officiating service for purpose of
seniority. Same will be the position if the initial
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appointment itself is made in accordance with
the rules applicable to substantive appointments
as in the present case. To hold otherwise will be
discriminatory and arbitrary...
...... 47. To sum up, we hold that
(A) Once an incumbent is appointed to a post
according to a rule, his seniority has to counted
from the date of appointment and not according
to date of his confirmation. The corollary to the
above rule is that where the initial appointment
is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation
in such post cannot be taken into account
considering the seniority"
(emphasis supplied)
The decision in Direct Recruits (supra) stands for the
principle that ad hoc service cannot be counted for
determining the seniority if the initial appointment has been
made as a stop gap arrangement and not according to rules.
The reliance placed by the Single Judge in the judgement
dated 6 December 1991 on Direct Recruits (supra) to hold
that the ad hoc service should be counted for conferring the
benefit of seniority in the present case is clearly misplaced.
This principle laid down in Direct Recruits (supra) was
subsequently followed by this Court in Keshav Chandra
Joshi v. Union of India. Recently a two judge Bench of this
Court in Rashi Mani Mishra v. State of Uttar Pradesh , of
which one of us (Justice DY Chandrachud) was a part,
observed that the services rendered by ad hoc employees
prior to their regularization cannot be counted for the
purpose of seniority while interpreting the Uttar Pradesh
Regularization of Ad Hoc Appointment Rules. This Court
noted that under the applicable Rules, "substantive
appointment" does not include ad hoc appointment and
thus seniority which has to be counted from "substantive
appointment" would not include ad hoc service. This Court
also clarified that the judgement in Direct Recruits (supra)
cannot be relied upon to confer the benefit of seniority
based on ad hoc service since it clearly states that ad hoc
appointments made as stop gap arrangements do not render
the ad hoc service eligible for determining seniority. This
Court speaking through Justice MR Shah made the
following observations:
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"36. The sum and substance of the above
discussion would be that on a fair reading of the
1979 Rules, extended from time to time; initial
appointment orders in the year 1985 and the
subsequent order of regularization in the year
1989 of the ad hoc appointees and on a fair
reading of the relevant Service Rules, namely
Service Rules, 1993 and the Seniority Rules,
1991, our conclusion would be that the services
rendered by the ad hoc appointees prior to their
regularization as per the 1979 Rules shall not be
counted for the purpose of seniority, vis-à-vis,
the direct recruits who were appointed prior to
1989 and they are not entitled to seniority from
the date of their initial appointment in the year
1985. The resultant effect would be that the
subsequent redetermination of the seniority in
the year 2016 cannot be sustained which was
considering the services rendered by ad hoc
appointees prior to 1989, i.e., from the date of
their initial appointment in 1985. This cannot be
sustained and the same deserves to be quashed
and set aside and the seniority list of 2001
counting the services rendered by ad hoc
appointees from the date of their regularization
in the year 1989 is to be restored.
37. Now so far as the reliance placed upon the
decision of this Court in the case of Direct
Recruit Class II Engg. Officers' Assn. (supra),
relied upon by the learned Senior Advocate
appearing on behalf of the ad hoc appointees is
concerned, it is required to be noted that even in
the said decision also, it is observed and held
that where initial appointment was made only ad
hoc as a stop gap arrangement and not according
to the rules, the officiation in such post cannot
be taken into account for considering the
seniority. In the case before this Court, the
appointments were made to a post according to
rule but as ad hoc and subsequently they were
confirmed and to that this Court observed and
held that where appointments made in
accordance with the rules, seniority is to be
counted from the date of such appointment and
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not from the date of confirmation. In the present
case, it is not the case of confirmation of the
service of ad hoc appointees in the year 1989. In
the year 1989, their services are regularized after
following due procedure as required under the
1979 Rules and after their names were
recommended by the Selection Committee
constituted under the 1979 Rules. As observed
hereinabove, the appointments in the year 1989
after their names were recommended by the
Selection Committee constituted as per the 1979
Rules can be said to be the "substantive
appointments". Therefore, even on facts also,
the decision in the case of Direct Recruit Class
II Engg. Officers' Assn. (supra) shall not be
applicable to the facts of the case on hand. At
the cost of repetition, it is observed that the
decision of this Court in the case of Direct
Recruit Class II Engg. Officers' Assn. (supra)
was considered by this Court in the case of
Santosh Kumar (supra) when this Court
interpreted the very 1979 Rules.
The notification dated 3 May 1977 stated that the ad hoc
appointments were made in administrative interest in
anticipation of regular appointments and on account of
delay that takes place in making regular appointment
through the concerned agencies. In this regard, the
vacancies were notified to the Employment Exchange or
advertisements were issued, as the case may be, by
appointing authorities. The appointments were not made on
the recommendation of the Punjab Subordinate Service
Selection Board. However, subsequently a policy decision
was made to regularize the ad hoc appointees since their
ouster after a considerable period of service would have
entailed hardship. Thus, the initial appointment was
supposed to be a stop gap arrangement, besides being not
in accordance with the rules, and the ad hoc service cannot
be counted for the purpose of seniority."
8. As a daily wager the petitioner was not having any service
conditions. A Full Bench in the case of Ashok Tiwari Vs.
M.P.Text Book Corporations and Another , reported in 2010 (2)
MPLJ 662 has held that a daily rated employee is not appointed
to any post and before he is appointed, the pre-conditions
contemplated for appointment to the post are not followed. His
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appointment is on a day-to-day basis as per need of work and
normally the conditions of service regarding transfer, suspension,
disciplinary action cannot be applied to such an employee.
9. Since the petitioner was not appointed against any substantive
post and the counsel for the petitioner has also failed to prima
facie establish that under which provision of M.P. Civil Services
(Pension) Rules, 1976, the case of the petitioner is covered, this
Court is of the considered opinion that the services rendered by
the petitioner as a daily wager cannot be counted for pensionary
purposes. 10. Accordingly, the petition fails and is hereby
dismissed."
10. Thus, it is clear that a daily rated employee is not appointed
to any post and before his appointment pre-conditions
contemplated for appointment to the post were not followed. The
appointment of daily rated employee is on day-to-day basis as
per need of work and normally the conditions of service
regarding transfer, suspension, disciplinary action cannot be
applied to such daily rated employee. Since the petitioner was
not appointed against any substantive post, accordingly, it is held
that the respondents did not commit any mistake by rejecting the
claim of petitioner to count the services rendered by him as a
daily wager for the purposes of pension. Accordingly, this
petition fails and is, hereby, dismissed."
4. Accordingly, this petition is dismissed in the terms and conditions
of order passed in the case of Kishor Verma (supra) .
(G. S. AHLUWALIA)
JUDGE
AK/-
