Madhya Pradesh High Court
Chhotelal Kushwaha vs The State Of Madhya Pradesh on 14 November, 2022
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 14th OF NOVEMBER, 2022
WP-01575-2011
BETWEEN:-
MANMOHAN DUBEY S/O SHRI BAL KRISHNA
DUBEY, AGED ABOUT 52 YEARS, VIJAY CHOWK
NEAR SAI MANDIR ADHARTAL JABALPUR MP
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE AND SHRI PRIYANSHU
KHARE, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH))))
THROUGH SECRETARY HEALTH ENGINEERING
DEPARTMENT VALLABH BHAWAN BHOPAL
M.P. (MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR REGION
JABALPUPR (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR (MADHYA
PRADESH)
4. CITY TREASURY OFFICER OCCUPATION:
COLLECTORATE JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE)
WRIT PETITION No. 1569 of 2011
BETWEEN:-
((((CHHOTELAL KUSHWAHA S/O LATE SHRI R
SHARMA, AGED ABOUT 50 YEARS, TRIMURTI
NAGAR KRISHNA COLONY JABALPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 11/18/2022
4:50:29 PM
2
.....PETITIONER
(BY SHRI NARENDRA NATH TRIPATHI, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH)))) TH.
SECRETARY PUBLIC HEALTH ENGG. DEPT.
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE )
WRIT PETITION No. 1571 of 2011
BETWEEN:-
(((CHHOTELAL KUSHWAHA S/O SHRI
SHIVNANDAN PRASAD VERMA, AGED ABOUT
41 YEARS, G.C.F. ESTAT BEHIND RAM MANDIR
CHHUKHADAN DISTT. JABALPUR M.P.
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH))))
THROUGH SECRETARY PUBLIC HEALTH
ENGINEERING DEPT., VALLABH BHAWAN
(MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR REGION
JABALPUR (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR (MADHYA
PRADESH)
4. CITY TREASURY OFFICER OCCUPATION:
COLLECTORATE JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE )
WRIT PETITION No. 1572 of 2011
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 11/18/2022
4:50:29 PM
3
BETWEEN:-
((CHHOTELAL KUSHWAHA S/O SHRI JEEVAN
LAL SEN, AGED ABOUT 46 YEARS, 2748/11
SHAKTI NAGAR BEHIND BHOLEBABA KUTI
MPEB ROAD DIST. JABALPUR M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH))))
THROUGH SECRETARY PUBLIC HEALTH
ENGINEERING DEPT., VALLABH BHAWAN
(MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH ENGINEER
DEPTT. JABALPUR REGION JABALPUR
(MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR (MADHYA
PRADESH)
4. CITY TREASURY OFFICER OCCUPATION:
COLLECTORATE JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE)
WRIT PETITION No. 1573 of 2011
BETWEEN:-
(CHHOTELAL KUSHWAHA S/O LATE SHRI L
KANOJIYA, AGED ABOUT 42 YEARS,
JAYPRAKASH NAGAR GHANDHI CHOWK
ADHARTAL JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH)))) TH.
SECRETARY PUBLIC HEALTH ENGG. DEPT.
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 11/18/2022
4:50:29 PM
4
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR REGION
JABALPUR (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. (MADHYA PRADESH)
4. CITY TREASURY OFFICER COLLECTORATE
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE )
WRIT PETITION No. 1575 of 2011
BETWEEN:-
CHHOTELAL KUSHWAHA S/O SHRI S
KUSHWAHA, AGED ABOUT 40 YEARS, GCF
ESTATE BEHIND RAM MANDIR CHHUIKHADAN
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH)))) TH.
SECRETARY PUBLIC HEALTH ENGG. DEPT.
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR REGION
JABALPUR (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR (MADHYA
PRADESH)
4. CITY TRESURY OFFICER OCCUPATION:
COLLECTORATE JABALPUR COLLECTORATE
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE)
WRIT PETITION No. 1576 of 2011
Signature Not Verified
Signed by: AJAY KUMAR
CHATURVEDI
Signing time: 11/18/2022
4:50:29 PM
5
BETWEEN:-
INDRABHAN VERMA S/O SHIVNANDAN
PRASAD VERMA, AGED ABOUT 44 YEARS, GCF
ESTATE BEHIND RAM MANDIR CHHUIKHADAN
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.N. PETHIA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH))))
THROUGH : SECRETARY PUBLIC HEALTH
ENGINEERING DEPTT VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR REGION
JABALPUR (MADHYA PRADESH)
3. EXECUTIVE ENGINEER PUBLIC HEALTH
ENGINEERING DEPTT. JABALPUR (MADHYA
PRADESH)
4. CITY TREASURY OFFICER OCCUPATION:
COLLECTORATE JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUBODH KATHAR, GOVT. ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The instant writ petitions involve a common issue, therefore, they were heard analogously and are being disposed of concomitantly by a common order.
2. For the sake of clarity and convenience the facts as elaborated in W.P. No.1568/2011 (Manmohan Dubey vs. State of M.P. and others) are being taken note of.
3 . A perusal of memo of writ petition reflects that the present Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 6 petitioner was initially appointed as Telephone Operator with the Public Works Department. Then vide order dated 9-02-2005 the petitioner was selected as Wireman Grade-II after obtaining certificate of Wireman from the authority competent. The petitioner vide order dated 9-02-2005 was appointed in Workcharged and Contingency Paid Establishment and having completed 10 years of service petitioner became entitled to be regularized and also became entitled for the pension.
4. It is further asserted in the petition that the petitioner having completed qualifying service was entitled for counting of his past services as a daily rated employee for the purposes of pension under the M.P. (Workcharged and Contingency Paid Employees) Pension Rules, 1979 [hereinafter referred to "Rules 1979"]. Therefore, while praying for issuance of regular appointment order the petitioner has also prayed that Annexure-R/2 filed along with the return be quashed and respondents be directed to count the services of the petitioner rendered as daily rated employee for the purposes of pensionary benefits.
5. Learned counsel for petitioner submits that the petitioner who was initially appointed way-back in 1988 was appointed in Workcharged Establishment vide order dated 9-02-2005 and since the petitioner had more than 17 years of service to his credit as a daily rated employee, petitioner was entitled for counting of his past services for the pensionary benefits.
6. It is further contended by learned counsel for petitioner that in terms of the laid down by this Court in the case of Surendra Kumar Chaturvedi vs. State of M.P. and others, 2005(3) MPLJ 385 , petitioner is entitled for the relief as prayed for. It is further contended that this Court in the case of Smt. Savita Kachhi vs. State of Madhya Pradesh and others Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 7 [W.P. No.9839/2011(S)] has held that the widow of a similarly situated employee is entitled for family pension in terms of Rule 4-A of the Rules 1979 and also Rule 47 of the M.P. Civil Services (Pension) Rules, 1976.
7 . Learned counsel for petitioner has also relied upon the order dated 01-8-2019 passed by this Court in W.P. No.8498/2018 [Smt. Sarita Vishwakarma vs. the Municipal Corporation] and it is submitted by him that the order dated 01-8-2019 in W.P. No.8498/2018 has not been interfered with even by the Division Bench in W.A. No.1522/2019 [Municipal Corporation, Jabalpur and another vs. Smt. Sarita Vishwakarma]. Therefore, in the light of the aforesaid decisions, the petitioner is entitled for counting of his past services rendered as a daily rated employee for the pensionary benefits.
8. Learned counsel for petitioner also submits that the case of the petitioner is also required to be considered in terms of Section 110 of the M.P. Industrial Relations Act and while placing reliance on the decisions... [FACTORY LAW JOURNAL] submits that source of employment, method of recruitment, and terms and conditions of the employment/contract of service, the quantum of wages/pay and mode of payment, are the main factors in order to decide the eligibility of an employee as regards the service benefits.
9. Therefore, counsel submits that the present petition deserves to be allowed and Annexure-R/2 by which respondents have declared that the employees who have inducted in employment after 01-01-1995 shall be governed by the National Pension Scheme (NPS) and will not be entitled for benefit of pension in terms of the M.P. Civil Services (Pension) Rules 1976, be quashed.
Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 810. Per contra, learned counsel for State submits that the case of the petitioner is ill-founded, inasmuch as grievance of the petitioner has already been taken note of by the Full Bench of this Court in the case of Mamta Shukla vs. State of M.P. and others, 2011 (3) MPLJ 210 . The Full Bench while appreciating the provisions of the M.P. (Workcharged and Contingency Paid Employees Recruitment and Conditions Service Rules, 1977 [for brevity "Rules 1977"] and also Rules 1979, have held that if an employee who was initially appointed or engaged without following the procedure as enumerated in the relevant recruitment not against any sanctioned post, would not be entitled for pension while counting his past services.
11. It is further submitted by learned counsel for State that the petitioner has nowhere stated in the entire petition, as to on strength of which order he was initially appointed as a daily rated employee and since the petitioner does not dispute that he has been regularized in Workcharged Contingency Paid Establishment with effect from 9-02-2005 having availed benefit of the said order dated 9-02-2005 now at this stage, cannot take recourse to somersault and pray for the relief of counting of his past services.
12. It is also contended by learned counsel for respondents that the petitioner with open eyes accepted the order dated 9-02-2005 which is contained in Annexure-P/1 and while acting upon the said order continued to perform duties and, therefore, subsequently, cannot question the same. Hence, submits that the petitioner is not entitled for any relief.
No any other point is pressed by the parties.
13. Having heard the rival contentions raised at the Bar, first it would be necessary to examine the provisions of Rules 1977 and Rules 1979. Rule Signature Not Verified 2(h) of Rules 1977 defines 'workcharged employee'. It provides "workcharged Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 9 employee" means a person employed upon the actual execution, as distinct from general supervision of a specified work, or upon subordinate provision of the departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily paid labour and muster roll employee employed on the work. Simultaneously, Rule 2(a) of Rules 1977 also provides definition of "Contingency paid employee" - means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to office contingencies excluding the employees who are employed for certain period only in a year.
15. The Full Bench in Mamta Shukla (supra) while dealing with the provisions of Rules 1977 as well as Rules 1979, in para 12 of the judgment held that the Pension Rules of 1979 are not independent Rules in regard to regulating the condition of service of workcharged and contingency paid employees. The Full Bench observed that there are specific rules, i.e. , Recruitment Rules of 1977 in regard to condition of service including appointment, qualification, procedure for recruitment and promotion, seniority list, conduct and procedure for imposing penalty etc. 1 6 . In para 16 of the judgment the Full Bench held, that the employees who were not eligible or were appointed on muster-roll basis or daily wager without following the procedure of Recruitment Rules of 1977, would not be eligible to get pension from the date of their initial engagement. Para 16 of the judgement in Mamta Shukla (supra) reads as under :
"16. The question has to be considered from another angle also. If, it is held that the Pension Rules of 1979 would be applicable independently to the employees, as per the definition of workcharged and contingency paid employees as defined in the Pension Rules of 1979 Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 10 then, the employees who were not eligible or who were appointed on muster-roll basis or daily wager without following the procedure of Recruitment Rules of 1977, would also be eligible to get pension from the date of their initial engagement."
17. Thereafter, the Full Bench in para 24 of the judgment concluded thus :
"24. On the basis of above discussion, we hold in regard to the substantial questions of law Nos.2 and 3 that an employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment rules, framed by the concerned department, i.e. the Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of laws Nos.2 and 3 accordingly."
[Emphasis supplied]
18. Therefore, in terms of the law laid down by the Full Bench in Mamta Shukla (supra), the case of the petitioner if examined, the same would reveal that in the entire memo of writ petition, it is nowhere stated by the petitioner in terms of which statutory provisions, the petitioner was initially appointed in the year 1988. In the entire petition it is nowhere stated by the petitioner that he was appointed as daily-wager while taking recourse to due process of law. The petition is conspicuously silent as regards initial appointment of the petitioner as a daily rated employee.
Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 1119. Undisputedly, in terms of the provisions of Rules 1977 as well as Rules 1979, as taken note of by the Full Bench in Mamta Shukla (supra) the petitioner has to establish his case while proving beyond reasonable doubt, that his initial induction in service was in accordance with law. Therefore, rights of the petitioner as accrued to him on the strength of the order dated 9-02-2005 contained in Annexure-P/1, are required to be considered in the light of the Circular dated 25-9-2006 contained in Annexure-R/2, as the petitioner is an appointee of dt. 9-02-2005 i.e. after 01-01-2005, which is the date mentioned in the Circular on 25-9-2006.
20. Reliance placed upon by the petitioner in Sarita Vishwakarma (supra) is misconceived, inasmuch as in that case deceased employee was regularized on 16-12-2003 and in that case, this was not the stand of the respondents that the employee concerned was to be governed with the provisions of National Pension Scheme and, therefore, the decision in Sarita Vishwakarma (supra) is of no assistance to the petitioner.
21. Simultaneously, the order in Savita Kachhi (supra) is also distinguishable, inasmuch as in the said case this Court considered eligibility of the wife of the deceased - employee as regards family pension and the said decision was in respect of provisions of Rule 4-A of the Rules 1979 as well as Rule 6 of the Rules. This Court in Savita Kachhi (supra) observed as under :
"When the aforesaid two Rules are read together, it is clear as crystal that the provisions which govern the family pension has a different field of operation than the provisions regarding pension to an employee who retires from the work- charged establishment and are governed by Rule 6 of Rules of 1979."Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 12
[Emphasis supplied]
22. A perusal of the same shows that in that case the provisions which govern the family pension were taken note of by this Court and, therefore, the said order has no applicability, so far as the case in hand is concerned.
23. Simultaneously, the decision in Devinder Singh (supra) has also no applicability, particularly in view of the fact that in the entire petition there are no pleadings as regards applicability of the M.P. Industrial Relations Act or the reference to the provision of the Industrial Disputes Act, 1947. The petitioner in the entire petition has not pleaded that aspect, however, an attempt has been made to submit in rejoinder that Standard Standing Orders are applicable to the employees of the Public Works Department and, therefore, the conditions of the petitioner are governed by M.P. Industrial Employment (Standard Standing Orders) Rules, 1963 framed under M.P. Industrial Employment (Standard Standing Orders) Act, 1961.
24. This rejoinder has been filed by petitioner on 19-9-2022 and, therefore, there is no response by the respondents to this rejoinder. However, in the entire petition, which is pending before this Court since 2011, for a period of more than 11 years the petitioner neither pleaded that provisions of M.P. Industrial Relations Act 1961 are applicable to petitioner nor made any effort to amend the writ petition. Therefore, this Court is not inclined to deal with the petitioner's contention as advanced in para 3 of the rejoinder. Particularly, when there are no such pleadings in the main petition.
25. Therefore, in the considered view of this Court, petitioners having been appointed after 01-01-2005, would be governed by Circular dated Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM 13 25-9-2006, contained in Annexure-R/2 and, therefore, is not entitled to claim counting of his past services as a daily rated employee for the purposes of pensionary benefits. The petitioner once having availed the benefit of order dated 9-02-2005, cannot assail the Circular dated 25-9-2006.
26. So far as claim pertaining to salary is concerned, respondents have stated in the return in para 10 that the salary has already been paid to petitioner. Therefore, in the considered view of this Court, the issue which is being sought to be adjudicated, is covered by the decision of Full Bench this Court in Mamta Shukla (supra). Accordingly, the present petition deserves to and is hereby dismissed. However, this order shall not come in the way of the petitioners, if they approach competent Labour Court under the provisions of M.P. Industrial Employment (Standard Standing Orders) Act, 1961 or the Rules made thereunder.
27. Ex consequenti, the writ petitions are dismissed. No order as to costs.
MANINDER S. BHATTI) JUDGE ac Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 11/18/2022 4:50:29 PM