Madhya Pradesh High Court
Smt.Tulsi Bai vs The State Of Madhya Pradesh on 30 November, 2010
W.P.NO.6942/2009(s)
30.11.2010
Shri R.K.Patel, learned counsel for the petitioner.
Shri Harish Agnihotri, learned Govt. Advocate for
respondents no.1,2,5 and 6.
Shri Manas Verma, learned counsel, counsel for respondent no.4.
The issue which crops up for consideration in the present petition under Article 226 of the Constitution of India is as to whether Asharam Burman, late husband of the petitioner who was appointed as Khalasi under the Work Charged Establishment in the Office of Janpad Panchayat Kundam, on 11.2.1980 and retired on attaining the age of superannuation w.e.f, 16.4.2005, would be entitled for the pension and whether after his death on 16.5.2008 the present petitioner would be entitled for family pension.
The fact that the deceased Asharam Burman was in service in the Office of Janpad Panchayat, Kundam from 11.2.1980 to 16.4.2005 on Work Charged Establishment is not in dispute. It is also not in dispute that consequent upon his retirement and on the basis of order passed by this Court in W.P.No.5200/2005(A) decided on 12.7.2005 , the retrial dues, except the pension, have been settled in favour of said Asharam Burman vide order dated 26.3.2008 (Annexure P-6). However, since the pension was declined to said Asharam Burman and consequent upon his death the family pension to the present petitioner, this petition has been filed confined to the claim of pension/family pension.
As apparent from order dated 26.3.2008, pension/family pension is declined to said Asharam Burman, husband of the petitioner herein on the ground that they are not eligible as per the provisions contained in the Madhya Pradesh (Work Charged and Contingency Paid Employees Pension Rules, 1979) (hereinafter to be referred to as the Rules of 1979). The denial of pension as apparent from order dated 26.3.2008 is on the ground that said Asharam Burman had not completed minimum 15 years of service as is contemplated under the provisions of Rules 1979.
Supporting the aforesaid aspect, it is submitted on behalf of respondent no.4, Janpad Panchayat Kundam that, unless categorised as " permanent employee " under the rules a person though having been retired from Work Charged contingency paid Establishment would not be entitled for pension because of the bar created vide Rule 4 of Rules of 1979.
Learned counsel appearing for the petitioner, however, counters the submission put forth by the respondents that, respondents have failed to objectively appreciate the provisions as contained in the Rules of 1979. It is urged that, under the very rules, said Asharam Burman was entitled for the pension and after his death the petitioner herein for the family pension.
To substantiate the submissions, learned counsel for the petitioner has placed reliance on the provisions of Rules of 1979 and the judgment of this Court in Surendra Kumar Chaturvedi V. State of M.P and others:2005(3) M.P.L.J 385.
The issue which is being posed for consideration in the given facts of the case is as to whether Asharam Burman, would be entitled for the pension and after his death the petitioner herein for the family pension.
Since, it is not disputed that Asharam Burman had continuously discharged as a Work Charged contingency employee from his initial date of appointment i.e., 11.2.1980 to 16.4.2005 ,i.e., over a period of 20 years the same has to be adjudged that he acquired the status as "permanent employee" under the Rules of 1979.
Rule 2(c) of the Rules of 1979 defines:
(2). Definitions.- In these rules, unless the context otherwise requires:-
( c) "Permanent employee" means a contingency paid employee or a work-charged employee who has completed fifteen years of service or more on or after the 1st January, 1974." Provided that in respect of a contingency paid employee or a work charge employee who has attained the age of superannuation on or after the First April 1981, permanent employee means an employee who has completed ten years of service or on after the First January 1974.
This Court in Surendra Kumar Chaturvedi (supra) had an occasion to interpret the aforesaid provision and after analyzing the same held:
15. It be seen that for completing qualifying service of 10years for obtaining pension, no written order is necessary and after completing the requisite ten years of service, an employee automatically becomes a member as envisaged in Rule 2 (c) of Pension Rules of 1979 and becomes entitled for the pension.
16. Since the petitioner acquired the status of permanent work charged contingency paid employee and was a permanent employee in terms of Rule 6 (1) and 2 (c) of the Rules of 1977 and he had already completed more than 10 years of his service under the work charged establishment, therefore, under the Pension Rules of 1979 he is entitled for the pension, as he retired on 27.8.2001. The order of respondent No. 3 directing and intimating the petitioner that he is not entitled for the pension vide Annexure-A/12 dated 23.8.2001 is, accordingly, quashed and it is held that the petitioner is entitled for the pension.
In the case at hand, since Asharam continuously worked for 20 years had acquired the status of permanent employee under the Rules of 1979.
Furthermore, Rule 4 of the Rules of 1979 provides for:
4. Regulation of amount of pension.
Notwithstanding anything contained in rules 5 and 6 the payment of pension and gratuity of permanent employee shall be regulated as under,namely, (1) The Madhya Pradesh New Pension Rules, 1951, except rule 5 thereof shall apply to all permanent employees who have retired on or after 1st January, 1974 but before the 1 st June 1976.
(2) The Madhya Pradesh Civil Services (Pension) Rules, 1976 except rules 47 and 48 thereof, as amended from time to time shall apply to all permanent employees who have retired on or after the 1st June, 1978.
Whereas Rule 4A stipulates of the Rules of 1979 which pertains to Family Pension provides for:
4A. Notwithstanding anything contained in rule 4 the family of a permanent employee who dies while in service or after retirement on pension on or after the 1st April, 1981 shall be entitled to family pension at the rate of 30% of his/her pay drawn at the time to death/retirement subject to minimum of Rs.40/- per month and the maximum of Rs.100/- per month subject to other conditions of rule 47 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 except sub-rule (3) of the said rule.
Thus fair reading of the aforesaid rules would reveal that entitlement of payment of pension and gratuity of "permanent employee" is regulated under the provisions contained in Rule 4 and the family pension is governed by Rule 4A of the Rules of 1979.
Since it is held that, Asharam Burman was a permanent employee, in the considered opinion of this Court, he cannot be deprived of the benefit of Rule 4 of the Rules of 1979 and denial to that extent by respondent no.4 is not in consonance with the provisions of Rules of 1979.
Since it is adjudged that Asharam Burman was a permanent employee under the Rules of 1979, and was entitled for pension ,his widow the petitioner herein, cannot also be deprived of the family pension which he was entitled to as per provision contained in Rule 4A of the Rules of 1979.
In view of above, the petition is allowed, Respondents are directed to settle the dues in favour of the petitioner as contained in Rule 4 and 4A of the Rules of 1979 within a period of three months from the date of communication of this order.
The petitioner shall also be entitled for the interest @ of 6 % per annum from the date of the order dated 26.3.2008 i.e. the date on which respondent no.4 ought to have extended the benefit of pension /family pension to the petitioner.
However, no costs.
C.c as per rules.
(SANJAY YADAV) JUDGE das