Madhya Pradesh High Court
State Of M.P. vs Jeevaram on 8 March, 2018
THE HIGH COURT OF MADHYA PRADESH
W.A.No.150/2011
(State of Madhya Pradesh and others Vs. Jeevaram )
1
Gwalior
8.3.2018
Shri Vivek Jain, learned counsel for the appellants.
Shri D.P. Singh, learned counsel for the respondent.
I.A.No.1648/2011 for condonation of delay of 249 days. Though opposed at, however, taking into consideration the recourse to being an institutional matter, the delay is filing the appeal is not found to be deliberate and is sufficiently explained. Consequently, the delay is condoned. I.A.No.1648/2011 disposed of.
With the consent of learned counsel for the parties, the matter is finally heard.
(1) This appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 takes exception to order dated 14.5.2010 passed in W.P.No.2197/2010 (S); whereby respondent's claim that being a Mate employed in the Water Resources Department his retirement age is 62 years has been allowed on the basis of the decision by Full Bench of this Court in Vishnu Mutiya and others Vs. State of M.P. and others, 2006 (1) M.P.L.J. 23.
THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 2 (2) Facts leading to the controversy very briefly are that respondent initially appointed in the year 1977, thereafter continued to work as Mate in the Water Resources Department. That by order dated 28.2.2010, his services were determined having completed 60 years. Contending inter-alia that Labour, Mate, Gangman since fall within the category of Class IV employees, the respondent being a Mate is entitled to get the benefit of extended age of retirement of 62 years as per the provisions of M.P. Shaskiya Sevak (Adhivarshiki-Ayu) Tritiya Sanshodhan Adhyadesh 1998.
(3) Present appellant who was respondent in writ petition, denied the claim on the ground that being a labourer, he is liable to retire at the age of 60 years. It was contended that the Water Resources Department issued a letter on 2.2.2010 stipulating that as per circular No.F.13/1/2002/31/Sa. dated 30.5.2002 issued by the Finance Department the age of retirement of daily wagers is 60 years. It was further contended that being engaged as THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 3 a labour on daily wages with effect from 1.8.1977, the respondent was paid wages as per the attendance marked in the muster roll. It was contended that since the date of birth of the petitioner is 20.2.1950 he has been rightly retired on attaining 60 years of age.
(4) Learned Single Judge relying on the decision in Vishnu Mutiya (supra) set aside the order of retiring the respondent at the age of 60 years and directed that the respondent be permitted to continue up to the age of 62 years. It is pertinent to note that the respondent was granted stay in his favour in furtherance whereto he continued, and as informed, was retired on attaining 62 years.
(5) The appellant takes exception to the order on the ground that the respondent was not a Workcharged and Contingency Paid Workmen, but was a daily wager therefore was not entitled for enhanced age of retirement at 62 years. It is urged that for taking advantage of the decision in Vishnu Mutiya (supra) incumbent it was upon the THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 4 respondent to establish that he acquired a status of the member of Workcharged and Contingency Paid Establishment. On these contention appellant seeks setting aside of order dated 24.5.2010 passed in W.P.No.2197/2010 (S).
(6) Respondent on his turn supports the order. It is further submitted that the respondent having worked till the age of 62 years has since retired therefore present appeal is rendered infructuous.
(7) In Vishnu Mutiya (supra) on the basis whereof the petition is allowed the reference was whether a Gangman can be retired before attaining the age of 62 years. The Full Bench dwelling upon various Rules and the service conditions of gangman employed in Public Works Department found that the services of gangman are governed by the Rules applicable to Work charged and Contingency Paid employees, it is held:
"12. It is true that gangman is not included in the schedule of 1976 Rules but from perusal of THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 5 the schedule attached to 1977 Rules it is clear that the post of gangman is included in the schedule of the said Rules. In such circumstances Rules of 1977 and 1976 will have to be read together. After reading both the Rules together it becomes clear that a gangman is fully governed by the said Rules. Non- mentioning of the post of 'Gangman' in the Schedule to the 1976 Rules is a mere omission in amending the Rules after coming into force of "1977 Rules". As per Rule 8 of the 1976 Rules a Gangman shall be governed by the same policy for superannuation as is applicable to the Class IV Government employees because they are in comparable category. The said rules reads as under:-
"8. Age, Physical fitness of new entrants and age of superannuation. - In the matter of age, and physical fitness for recruitment and superannuation, the same rules and policies shall apply to the new entrants into the service as are applicable to the Government servants of comparable categories in the regular employment."
THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 6
13. While deciding the Gulabsingh's case (supra) the 1977 Rules and Pension Rules of 1979 were not brought to the notice of the Court. Under Rule 6 of 1976 Rules the employees who were in service for at least fifteen years on 1-1-1974 were eligible for the status of permanent work charged or contingency paid employees. This has been made more liberal by the 1979 Rules. Rule 2 (c) of the 1979 Rules lays down that a contingency paid employee or a work-charged employee becomes permanent employee whenever he completes fifteen years of his service though it may be after 1-1-1974.
14. It is well known principle of law that when two different Rules contain different provisions the one which is more beneficial to the employees has to be accepted in the welfare State. Considering this fact we find that the law laid down by this Court in the case of Bharosi (supra) and Bhajanlal (supra) lay down the correct law while the law laid down by the Gulabsingh case (supra) is not correct as the view taken in the said case was taken without considering the 1977 rules and 1979 Rules. In THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 7 such circumstances, we hold that the services of gangmen are governed by the Rules applicable to work charged and contingency paid employees even though the gangman is not included in the schedule of 1976 Rules and the age of superannuation is 62 years as other Class IV employees of the State Government because they are in comparable category." Thus in Vishu Mutiya (supra) there being a specific finding that the gangman is governed by the Rules applicable to Work charged and Contingency Paid Employees, the respondent-petitioner does not enure any benefit thereform.
(8) In State of Madhya Pradesh Vs. Ram Singh and another, W.P.No.1273/2000 decided on 18.7.2005 it was held:
"5 Controversy is very short. It is to be examined whether employee is entitled for pension. Rule 2 (h) of M.P. P.W.D. Department Workcharged and Contingency Paid Employees Recruitment and Condition of Service Rules, 1976 are reproduced below:
THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 8 "Rule 2 (h) "Work charged Employees" means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster-roll employed on the work."
6. Rule 2 (h) is clear and specific that the definition of workcharged employee included a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster-roll employed on the work. Admittedly employee was a dailly paid labour and he continued in service as daily paid labour. Therefore, he will not fall in the definition of a workcharged or contingency paid employee and his case will not be covered by M.P. Workcharged and Contingency Paid Employees (Pension) Rules. As such he is not entitled for pension, gratuity as per rules has been paid to him. The order passed by the Tribunal is against the Rules. Therefore, the order passed by the Tribunal is quashed and petition filed by respondent no.1 before the Tribunal is dismissed."
THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 9 (9) In Badri Vs State of M.P. and others, 2011 (4) M.P.L.J.86, the Division Bench of this Court on a reference "Whether the judgment passed in Writ Petition No.6692/2010 (s) (Ramswaroop Sharma Vs. State of M.P. and others) has taken a correct view regarding applicability of Mutiya's case (supra) in the case of daily wagers and declaring their age of retirement as 62 years or the judgment passed by another learned Single Judge in Mathura Prasad Yadav vs. State of M.P. and others, reported in 2010 (3) MPLJ 323, has taken the correct view ? And, hence, what should be the age of retirement of daily wager/gangman working in the State of Madhya Pradesh ?", has held:
"15. The M. P. Shaskhiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998, prescribes that a Class IV employee is eligible to continue in service up to the age of 62 years. However, the aforesaid benefit could not be made available to a daily wager employee because the daily wager employee is not a THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 10 holder of a civil post. Apart from this, the Constitution Bench of Hon'ble the Supreme Court in the case of Parshotam lal Dhingra vs. Union of India (supra) has clearly held that a substantive appointment to a permanent post or a temporary appointment to a temporary post gives a servant or appointee a right to hold the post up to the age of retirement as per the Rules. It is clear from the judgment of the Constitution Bench that to get a benefit of certain age of retirement the employee has to be appointed to a permanent post or to a temporary post. When the daily wager employee has not been appointed against the post then certainly he has no right to hold the post for a specific period in accordance with the rules because the daily wager employee has no status.
16. In this view of the matter, in our opinion, a daily wager employee is not entitled to continue in service up to the age of 62 years as provided to a Class IV employees of the State in THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 11 accordance with the provisions of the M. P. Shaskiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998. A Full Bench of this Court in the case of Vishnu Mutiya and others vs. State of M.P. and others, reported in 2006(1) MPLJ 23, has held that the services of Gangman are governed by the Rules applicable to M. P. Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976, and they are entitled to continue in service up to the age 62 years at par with Class IV employees of the State. However, the ratio laid down in the aforesaid judgment cannot be made applicable to the daily wager employees because the daily wager employees stand on different footing;
17. Consequently, we answer the reference by holding that the learned Single Judge of this Court in Mathura Prasad Yadav Vs. State of M.P., reported in 2010 (3) MPLJ 323, has taken a correct view that the daily wager employees are not eligible to continue in service up to the age THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 12 of 62 years and the order passed by the learned Single Judge in another Writ Petition No. 6692/2010 (S), Ramswaroop Sharma vs. State of M.P. and others, has not taken the correct view. We further hold that a daily wager employee is not entitled to claim particular age limit for continuing in service in absence of any rule in this regard. The department or Government is at liberty to fix the age of a daily wager to continue in service. Accordingly, we answer the reference and substantial question of law framed by the learned Single Judge."
(10) In the case at hand though true it is that the respondent was engaged with effect from 1.8.1977 and continued till the order dated 28.2.2010 ( and thereafter by virtue of the interim order by the Court). However, entire services rendered by him are on daily wages. No material has been commended at as would establish that the respondent was brought on the Workcharged Contingency Paid Establishment. In view whereof, the law laid down in Badri (supra) will be squarely applicable which dis-entitles THE HIGH COURT OF MADHYA PRADESH W.A.No.150/2011 (State of Madhya Pradesh and others Vs. Jeevaram ) 13 the respondent for serving till 62 years. (11) The impugned order when is tested on the anvil of above analysis cannot be given stamp of approval. Consequently appeal succeeds, the impugned order dated 14.5.2010 passed in W.P.No. 2197/2010 is set aside. The order dated 28.2.2010 of retiring the respondent on attaining the age of 60 years is upheld. However, since the respondent continued in service after the age of 60 years till 62 years by virtue of the order passed in W.P. No.2197/2010, the appellants are directed not to effect any recovery from respondent towards his wages paid to him for a period of two years. However, these two years shall not be counted for any other service benefits. (12) The appeal is finally disposed of in above terms. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pawar/-
Digitally signed by ASHISH
PAWAR
Date: 2018.03.16 10:34:03 +05'30'