Madhya Pradesh High Court
Gaurishankar Pandey vs The State Of Madhya Pradesh on 4 October, 2017
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
WRIT PETITION NO.16652 OF 2016
Gaurishankar Pandey
Vs.
State of M.P. and others
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Present :-
Shri Ashish Kumar Pathak, Advocate for the petitioner.
Shri Piyush Jain, Panel Lawyer for the respondents/State
ORDER
(Passed on this the 4th day of October, 2017) In this petition the petitioner who is a retired Aamin of the Department of Water Resources, Bahoriband District Katni, is aggrieved by the order dated 19.12.2014 (Annexure P/9) whereby the petitioner's representation to count his earlier service in the qualifying service to receive pension has been rejected.
2. In brief the facts of the case are that the petitioner was appointed on 1.1.1972 in the respondent department on daily wage basis and was paid a monthly amount in lieu of salary from contingency funds. The petitioner continued to work in the department till 1995 and on 11.10.1995, he was appointed as Aamin on regular basis. The petitioner joined the post of Aamin on 12.1.1995 and continued to serve for the department but on 20.2.1997 his serves were abruptly terminated for no apparent reason and being aggrieved of the same he preferred an Original Application No.560/1997 before the State Administrative Tribunal and the same was allowed on 9.9.1997 by quashing the order of termination and the petitioner was allowed to continue on his post. It is further submitted by the petitioner that he was allowed to work continuously on his post and has finally retired on 30.6.2012. After his retirement, the petitioner submitted a representation for pensionary benefits and since the same was not paid to the petitioner, he preferred W.P. No.20379/2012 for giving seniority and other monetary benefits for counting the period of his service prior to the date of regular appointment on the post of Aamin for grant of pension.
3. In the aforesaid writ petition, the petitioner also filed rejoinder/application for taking the orders which were passed in identical matters on record and one such order refers to Shri Sudama Prasad Pandey who was appointed on the post of Aamin by the same order in which the petitioner's name finds place at Sl. No.5 whereas the name of Sudama Prasad Pandey appears at Sl. No.1. In the case of Sudama Prasad Pandey, his past services were also counted before the date of his regular appointment for the purpose of pension. The petitioner also relied upon other cases of similarly situated persons. However, the petition was disposed of by this Court vide order dated 9.1.2014 (Annexure P/6) with a direction to respondents to decide the petitioner's representation. Against the aforesaid order, an appeal was also preferred by the respondents but the same was also dismissed vide order dated 11.11.2014 passed in W.A. No.750/2014 .
4. The petitioner's contention is that he is being continuously and deliberately harassed by the respondents who have taken upon themselves to dismiss the petitioner's claim. He has also relied upon Rule 12 of the M.P. Civil Services Pension Rules, 1976. The petitioner has also relied upon a decision of this Court in the case of Chandrakanta w/o Manaklalji Sharma vs. State of M.P. and others, 2007(2) MPLJ 339.
5. In return, the contention raised by the respondents is that the petitioner cannot claim the counting of his past service for the purpose of completing qualifying service as per M.P. Civil Services Pension Rules, 1976. It is further submitted that the petitioner was a daily wager assigned duties w.e.f. 1.1.1972, who was regularized on 5.9.1995, hence in the absence of any provision to count his services rendered earlier, the petition is liable to be dismissed. It is further submitted by the respondents that the decision relied upon by the petitioner rendered in the case of Sudama Prasad Pandey is also if no help to the petitioner, as the aforesaid decision has been passed on erroneous appreciation of facts and if one of the employees has been granted the benefit erroneously, then other cannot claim the same benefit as negative equality is not permissible under law. It is further submitted that the petitioner was not receiving the salary as a daily wager from the consolidated funds of the State or the Contingency funds but was receiving the same under the work of construction of Roopnath Tank, copy of the pay slip is also filed on record as Annexure-R/1.
6. Heard learned counsel for the parties and perused the record.
7. It is an admitted fact that the petitioner was appointed in the year 1972 i.e. on 1.1.1972 and joined his duties as Aamin vide order dated 5.9.1995 and 11.10.2015 respectively. Rule 12(2) of the M.P. Civil Service (Pension) Rules, 1976 which is relevant in the present case, reads as under :-
"12. Commencement of qualifying service:-
2. Subject to the provision 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 officiating or temporary capacity.
(emphasis supplied)
8. In the considered opinion of this Court, the petitioner has worked from 1972 to 1995 as a daily wage employee till his appointment on regular basis as Aamin on 11.10.1995 and thereafter he retired after attaining the age of superannuation on 30.6.2012. Thus, he has already spent around 40 years in the service out of which around 23 years have been spent as a daily wager employee. This Court in the case of Chandrakanta w/o Manaklalji Sharma (supra) has observed as under:
"11A. Learned counsel appearing for the parties have agreed that the pension and gratuity of the petitioner shall be regulated, as per M.P. Civil Services (Pension) Rules, 1976. Chapter III, which starts from Rule 12, and deals the qualifying service, and Rule 13 which deals with the condition subject to which service qualifies; the relevant extract of those rules are reproduced hereinbelow:-
12. 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 from the consolidated Fund of the State which has not been declared as non-pensionable."
12. On perusal of the sub-rule (2) of Rule 12, it is apparent that subject to the provisions of the Pension Rules, the qualifying service of the employee shall commence from the date, on she/he takes charge of the post to which she/he is first appointed either substantively or in an officiating or temporary capacity. Rule 13 specifies that unless the duties and pay of the employee concerned is regulated by the Government it shall not qualify the service rendered by such employee. The word qualifying service has been defined under rule 3(p) of the Pension Rules which is reproduced as under :-
"3(p) "Qualifying Service" means the period between the date of joining pensionable service under the State Government and retirement therefrom which shall be taken into account for purpose of the pension and gratuity admissible under these rules and includes the period which qualifies under any other order or rule for the time being in force;"
13. However, on reading of the aforesaid rules, it is apparent that the date of joining to a post on which the employee is first appointed, either substantively or officiating or temporarily and takes over the charge on that post and retired therefrom shall be, the period of service on that post, and the date of taking over the charge till attaining the age of superannuation be treated as qualifying service. Under Rule 13(1) it is clarified that the service of the employee shall not qualify unless duties and pay of the Government servant is regulated by the Government under the conditions determined by them. Sub clause (2) of Rule 13 clarifies the word service for the purpose of Rule 13(1), by which it is apparent that if the service rendered against a post under the Gov. and paid salary from the consolidated fund of Govt., which is not declared as non-pensionable to be treated as service of the Govt. In view of reading of the aforesaid rules, it is apparent that qualifying service has been defined under clause 3(p) of the Pension Rules. Rule 12(2) of these rules indicates the commencement of the qualifying service and Rule 13(1)(2) explains that service against the post paid from consolidated fund, not declared as non- pensionable, shall be qualified service, only with the rider of regularization of pay and duties by the Govt.
14. In the facts of the present case and as per the return submitted by the Govt., it is apparent that the petitioner was appointed temporarily as Teacher though on a fix pay of Rs.100/-. On the date of appointment petitioner was possessing the requisite qualification of the post of Assistant Teacher. She has taken over the Teacher by joining her duties on 10-1-1974 and remain continued on such post till attaining the age of superannuation. She has performed the work attached to the post of Teacher. The payment of the salary either of fixed pay or in the regular scale of the pay was allowed to her from the consolidated fund of the Govt. was not declared as non-pensionable. The order of regulation of pay was passed by the Govt. on 28-2-1989 extending such benefit with effect from 6-1-1989. However, it is apparent that, her pay has also been regulated by the Govt.
15. The argument of the Dy. Govt.
Advocate Shri Joshi is only confined, that the services rendered by the petitioner in between 10-1-1974 to 5-1-1989 she had received fix pay, however, such period shall not be counted under the qualifying service, to the Govt. servant. The service may qualify, only with effect from the date from which the pay is regulated by the Govt., under the conditions as determined by them under Rule 13(1); this argument is of no substance. Because Rule 12(2) of the Pension Rules deals with the commencement of the qualifying service, whereby it is apparent that the commencement of the qualifying service shall be with effect from the date on which he/she takes the charge of the post to which he/she is first appointed. Thereafter Rule 13(1) specifies the conditions subject to which the service qualifies. Wherein, it is mentioned that the service shall not qualify under his duties and pay are regulated. Sub-rule (2) deals with the service, whereby it is apparent that if the payment is made to the employee from the consolidated fund of the Govt. which is not declared as non-pensionable. Thus, it is apparent that the commencement of the qualifying service starts from the date on which the employees takes the charge of the post and receives payment from the consolidated fund of the State Govt., which has not been declared as non-pensionable. Thereafter Rule 13(1) deals that under which condition the service of a Govt. servant shall be treated as qualifying service. In the present case the commencement of the service of the petitioner has been started on 10-1-1974 and the salary has been received by her from consolidated fund which has not been declared as non-pensionable. The pay has been qualified by the regulating the same as per the order of the competent authority in the regular scale, therefore, the period of the service with effect from 10-1-1974 to 5-1-1989 deserves to be counted as qualifying service, under Rules 12(20 and 13(1) and (2) of M.P. Civil Services Pension Rules, 1976.
16. The aforesaid interpretation of Rules 12 and 13 finds support from the various judgments of this Court in the case of Madhukant Yadu, Hariom Soni, Jagdish Prowal and Vibha Mathur (supra), whereby this Court has held that if the Assistant Teachers appointed on the fix pay, are entitled to get regular scale of the pay and increment since the date of appointment. If the ratio of the aforesaid judgments is made applicable in the facts of the present case then petitioner was entitled to get regular scale of pay since the date of initial appointment, which was not allowed to her by the Govt. arbitrarily. However, taking into consideration this aspect, and in view of the discussion made hereinabove the service rendered by the petitioner on a fix pay of Rs.100/- or Rs.300/- shall be treated as qualifying service for the purpose to grant her, the benefit of pension and other retiral dues.
17. In view of the discussion made hereinabove and on perusal of Rule 12, 13, 3(p), 43 and 44 of the Pension Rules, and in the facts of the present case the entire period rendered by the petitioner from 10-1-1974 till attaining the age of superannuation i.e. 30-9-1997, deserves to be counted as qualifying service. However, in the light of Rule 43 and 44 of the Pension Rules of 1976 because the petitioner has rendered the services for more than ten years, hence, she is entitled for pension and gratuity after its re- determination.."
(emphasis supplied) Thus so far as the rendering of services by the petitioner is concerned, he had already served or 23 years as daily wager employee i.e. in the temporary capacity, the respondents have not specified as what is the meaning of ' construction of Roopnath Tank' and in the absence of any explanation, it cannot be said that the salary of the petitioner was not being given from the consolidated funds of the State.I In the case of Sudama Prasad Pandey this Court has held that under Rule 12(2) of the M.P. Civil Services (Pension) Rules, 1976 which refers to commencement of qualifying service, it also extends to the employees, who are working on temporary capacity. The Coordinate Bench of this Court in the case of Sudama Prasad Pandey after relying upon the decision of the Division Bench passed in WA No.682/09 has held that since the petitioner has already worked as daily wager employee, then it cannot be said that the aforesaid service shall not be included in the qualifying service and while allowing the petition had directed the respondents to settle the claim of the petitioner within three months.
9. The contention raised by the respondents that the aforesaid judgment 'Sudama Prasad' is erroneous cannot be accepted for the reason that the State has not filed any appeal against the aforesaid judgment, hence it does not lie in the mouth of the State Government to submit that the aforesaid judgment has been passed erroneously. Apart from that, the petitioner has also relied upon another decision of the Coordinate Bench of this Court in the case of Gauri Shankar Pandey passed in WP No.20397/2012 wherein this Court has also relied upon the judgment of Sudama Prasad Pandey and has directed the respondents to consider the petitioner's case within three months and award the benefit in the light of the decision in the case of of Sudama Prasad Pandey (supra). The respondents in their reply are silent about the aforesaid decision, which was finally passed in the case of Gouri Shankar Pandey. The petitioner has also relied upon the decision of the Division Bench of this Court wherein the State Government had preferred an appeal against the order passed in the case of Gouri Shankar Pandey, which has also been dismissed. It is also surprising that what was the ultimate order passed by the respondents in the case of Gouri Shankar Pandey has not been disclosed in the reply.
10. In the circumstances, this court finds that the rejection of the petitioner's application vide order dated 19.12.2014 passed by the respondents cannot be justified hence this petition stands allowed, and the impugned order dated 19.12.2014 is hereby quashed. Hence, the respondents shall consider and decide the entitlement of the petitioner with regard to retiral dues in the light of decision in the case of Sudama Prasad Pandey (supra) within a period of three months from the date of representation by a speaking order. Needless to state, as in the case of Sudama Prasad Pandey, similar benefits be extended to the petitioner.
(Subodh Abhyankar) Judge 04/10/2017 DV/ANSARI