Madhya Pradesh High Court
Ramesh Kumar Debey vs The State Of M.P. on 25 September, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
Writ Petition No.15053/2019
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.15053/2019
Ramesh Kumar Dubey
Versus
State of Madhya Pradesh and others
Date of Order 25.09.2019
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
Whether approved for
reporting
Name of counsels for For Petitioner: Shri Vipin Yadav,
parties Advocate.
For Respondents/State : Shri
Akshay Pawar, Panel Lawyer.
Law laid down Significant Para Nos.
Reserved on : 06.08.2019 Delivered on : 25.09.2019 (O R D E R) (25.09.2019) This petition is directed against the order dated 31.05.2019 (Annexure-P-4), whereby the petitioner has been directed to be retired w.e.f. 31.05.2019 (Annexure-P-4) as has attained the age of 60 years.
2. The learned counsel for the petitioner submitted that the petitioner is holding the post of Pump Operator and has been declared permanent employee 2 Writ Petition No.15053/2019 w.e.f. 01.09.2016. He further submitted that in view of the Madhya Pradesh Shaskiy Sewak (Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2018 the age of retirement of the employees working even on Class-III post has been extended from 60 to 62 years. He further submitted that as per the amendment made in the Fundamental Rules, the age of superannuation has been enhanced from 60 to 62 years and the Fundamental Rule is applicable to the petitioner being permanent employee.
3. Per contra, the learned Panel Lawyer appearing for the respondents/State has submitted that the Pump Operator has been shown a Class-III employee under a schedule made by the Water Resources Department categorizing the petitioner under the different category. He further submitted that as per the order passed by this Court in case of State of M.P. Vs. Ramjilal Prajapati (Review Petition No.587/2017), the petitioner is a Class-III employee, therefore, he has rightly been retired at the age of 60 years.
4. However, in view of the law laid down by this Court in case of Ramesh Prasad Agnihotri Vs. State of M.P. and others (W.P. No.13115/2019) decided on 06.08.2019, wherein the Court has observed as under:-
"3. However, the Division Bench of this Court in Review Petition No.587/2017 parties being State of M.P. Vs. Ramjilal Prajapati while reversing the judgment passed in Writ Appeal No.308/2016 held that the Time Keeper as well as Supervisor are not the Class-IV posts but they are Class-III posts as per the schedule appended to M.P. Irrigation Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1977 and, therefore, it is held that their age of 3 Writ Petition No.15053/2019 retirement is 60 years. In the present case, the petitioner is holding the post of Copyist and has been classified and according to view taken by the Division Bench of this Court in case of Ramjilal Prajapati (supra) and the said case has been followed by the co-ordinate Bench of this Court in Writ Petition No.10102/2017 and other connected matters, dismissed the petitions holding that the employees working as Class-III employees should be retired at the age of 60 years. So far as the Copyist post is concerned, in the schedule, it also falls under the category of Class-III employee, therefore, age of retirement of the petitioner is also 60 years. However, from the reliance placed by the learned counsel for the petitioner in Policy sponsored by the State of Madhya Pradesh on 07.10.2016, it is clear that the stipulation made in the said Policy would not determine the age of retirement of the petitioner. Admittedly, the petitioner was a daily rated employee classified in pursuance to the Policy of the State Government which also contained that a daily wager if at all is to be regularized, he would be regularized on Class-IV category and secondly, the said condition has been inducted taking note of the provisions of the Madhya Pradesh Dainik Vetan Bhogi Karmchari (Sewa Ki Sharte) Niyam, 2013 in which, a procedure is prescribed for regularization on the vacant post of Class-IV employees. It does not mean that the petitioner should also be treated to be a Class-IV employee because ultimately he has to be regularized on Class-IV post. The said Policy contained a clause relating to vacant post of Class-IV in regular establishment and the procedure to fill up the same, therefore, that cannot be treated to be a criteria to determine the status and category of the petitioner.
4. However, the Division Bench of this Court in case of Ramjilal Prajapati (supra) has not taken note of the notification issued on 31.03.2018 whereby, the earlier age of superannuation of Class-III employees which was 60 years has been enhanced to 62 years. By the said notification, the State Government has amended the Madhya Pradesh Shahskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967 (in short the 'Adhiniyam, 1967') and substituted the word '60 years' by '62 years' and as such, the age of retirement of Class-I to Class-III employees has been enhanced from 60 years to 62 years. The notification also provides the amendment with regard to extending the age of superannuation and it be also inserted in the Fundamental Rules and in place of 60 years, it should be 62 years. The impact of extending the age of superannuation of the Government 4 Writ Petition No.15053/2019 employees from 60 years to 62 years and amendment made in the Fundamental Rules as such, has not been considered by the Division Bench in the case of Ramjilal Prajapati (supra). The core question that arises here is that if the Fundamental Rules provide enhancement of age of the Government servants, the petitioner having status of permanent employee would be considered as a Government servant or not and the provisions of the Fundamental Rules would be applicable to the petitioner or not? Undisputedly, if it is found that the provisions of the Fundamental Rules are applicable to the present petitioner then he is also entitled to get the benefit of extended age of superannuation which is being provided to the employees of the State Government in view of the amendment made in the Adhiniyam, 1967 as well as in the Fundamental Rules. The notification dated 31.03.2018 is quoted hereinbelow:-
MADHYA PRADESH ORDINANCE No.4 OF 2018 THE MADHYA PRADESH SHASKIYA SEVAK (ADHIVARSHIKI-AYU) SANSHODHAN ADHYADESH, 2018 [First published in the "Madhya Pradesh Gazette (Extra-ordinary)", dated the 31st March, 2018.] Promulgated by the Governor in the sixty-ninth year of the Republic of India.
An Ordinance further to amend the Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967.
WHEREAS, the State Legislature is not in session and the Governor of Madhya Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate action;
Now, THEREFORE, in exercise of the powers conferred by clause (1) of article 213 of the Constitution of India, the Governor of Madhya Pradesh is pleased to promulgate the following Ordinance:-
1. This Ordinance may be called the Short title.
Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhyadesh, 2018.
2. During the period of operation of this Madhya Ordinance, the Madhya Pradesh Pradesh Act 5 Writ Petition No.15053/2019 Shaskiya Sevak (Adhivarshiki-Ayu) No.29 of 1967 to Adhiniyam, 1967 (No.29 of 1967) be temporarily (hereinafter referred to as the principal amended. Act), shall have effect subject to the amendments specified in section 3.
3. In section 2 of principal Act, in rule Amendment of 56 of the Fundamental Rules, in sub- Fundamental rule (1)- Rule 56 as substituted by
(i) the brackets, figures and letters section 2 of the "(1-a), (1-b)" occurring twice, Madhya shall be omitted; Pradesh Act
(ii) for the words "sixty years" No.29 of 1967.
occurring twice, the words "sixty two years" shall be substituted.
BHOPAL: ANANDIBEN PATEL
DATED THE 31st March, 2018 Governor,
Madhya Pradesh
The Division Bench of this Court in case of M.L. Kalia Vs. Union of India and others reported in 1979 SCC Online MP 215 : 1979 Lab IC 1166 has laid down that the provisions of Fundamental Rule 56 (A) would be applicable to all the classes of Government servants- temporarily, officiating or permanent. The relevant portion of the said judgment is reproduced hereinbelow:-
"In K.R. Tahiliani v. Union of India, Civil Writ No. 1311 of 1975, D/- 23-5-1977 (Delhi) the learned single Judge while holding that Fundamental Rule 56(j) would not apply to a case of Government servant who did not belong to Class I or Class II service or permanently hold such a post, has laid emphasis on the use of the word "IN" appearing in cl. (i) in sub-rule (j) of Fundamental Rule 56. In the opinion of the learned Judge deciding that case a concept of retirement would be wholly foreign for a temporary Government servant and, therefore, in his opinion the Fundamental Rule 56(j) could apply only to a permanent Government servant in Class I or Class II service. With due respect to the learned Judge, we find ourselves unable to agree with the view taken. We have already shown above that Fundamental Rule 56(a) would apply to all classes of Government servant -- temporary, officiating or permanent -- and we see no reason to restrict the scope of Fundamental Rule 56(j) as has been done by the Delhi High Court. We are of opinion that the sub-rule (j) shall apply to an officiating or temporary Government servant also holding a Class II Post."
Although, it is clear as per the view taken by the Division Bench in the case of M.L. Kalia (supra) that the provisions of Rule 56 of the Fundamental Rules are 6 Writ Petition No.15053/2019 applicable to the Government servants having status of officiating, temporary and permanent employees. Since the petitioner has acquired the status of permanent employee as per the notification issued by the State Government on 07.10.2016, he was also entitled to get the benefit as has been provided to the employees of the State Government. Further, if Rule 2 of the Fundamental Rules is seen that deals with the application of the Fundamental Rules and it provides as under:-
F.R. 2. Extent of application-(1) The Fundamental Rules apply, subject to the provisions of rule 3, to all Government servants whose pay is debitable to civil estimates in India, and to any other class of Government servants in India to which the Secretary of State in Council may by general or special order declare them to be applicable. In relation to services under its administrative control, other than all-India services a local Government may make rules modifying or replacing any of the Fundamental Rules; provided that-
(a) no such rule shall adversely affect any person who is in Government service at the time when the Fundamental Rules come into force; and
(b) any such rule which grants any privilege or concession not admissible under the terms of the Fundamental Rules, or of the Civil Service Regulations as they stand at the time when the Fundamental Rules are introduced, shall require the sanction of the Secretary of State in Council. (2) Where the application of any rule in the Fundamental Rules is expressly or by implication limited by the provisions of any rule made under section 45-A of the Act, the limitation shall prevail and the rule in the Fundamental Rules shall be subject to the rule made under section 45-A of the Act.
Then in Rule 3 of the Fundamental Rules, it is dealt as under:-
F.R. 3. Scope of the Fundamental Rules.- Unless in any case it be otherwise distinctly provided by or under these rules, these rules do not apply to Government servants whose conditions of service are governed by Army or Marine Regulations.
The aforesaid Rule 3 is an exclusion clause showing as to whom rules would not be applicable. Undoubtedly, the category of the petitioner does not fall under the categories which have been excluded from applicability of the provisions of the Fundamental Rules.
5. With due respect to the law laid down by the Division Bench in the case of Ramjilal Prajapati (supra) it is 7 Writ Petition No.15053/2019 distinguishable in view of the fact and circumstances as quoted hereinabove, as the scope and applicability of the Fundamental Rules over the petitioner has not been considered, therefore, I am of the opinion that the petitioner being a permanent employee though otherwise, falls under the schedule not part of any Rules introduced by the Department of Water Resources in which, he has been placed under the category of Class-III employee but even otherwise, he is entitled to get the benefit of extended age of superannuation i.e. 62 years as has been available to the Government servants in view of the amendment made in the provisions of Adhiniyam, 1967 as well as in the Fundamental Rules, therefore, the petition filed by the petitioner is allowed and the order retiring the petitioner at the age of 60 years is hereby set aside and the respondents are directed to allow the petitioner to continue in service till the age of 62 years."
the petitioner is also entitled to get the benefit of enhanced age of superannuation and has to be retired at the age of 62 years. The order impugned, therefore, is set aside.
5. Since the petitioner has already been retired, he is directed to be reinstated in service with immediate effect and he be also paid salary for the intervening period when he remained out of service.
6. The petition is accordingly, allowed for the reason assigned in the order passed by this Court in Ramesh Prasad Agnihotri (supra). The case relied upon by the learned Panel Lawyer is not applicable.
(SANJAY DWIVEDI) JUDGE ac/-
Digitally signed by ANIL CHOUDHARY Date: 2019.09.27 13:31:28 +05'30'