Madhya Pradesh High Court
Kesharsingh vs The State Of Madhya Pradesh on 10 January, 2017
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W P Nos. 5498 / 2016 and 7123 / 2016
10/01/2017
Mr. Prakhar Karpe, learned counsel for the
petitioner.
Mr. Pushyamitra Bhargava, learned counsel for the
respondent - State.
Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 5498/2016 are narrated hereunder.
The petitioner before this Court has filed this present writ petition claiming pensionary benefits. The petitioner was appointed as a Gangman Coolie in the Public Works Department in the year 1973. He has attained the age of superannuation on completion of 40 years of service on 22/5/2010. However, he was not regularised and even after serving for 40 years with the State of Madhya Pradesh, pension is not being paid to him. His contention is that in similar circumstances, identical Writ Petitions have also been allowed by this Court, by the learned Single Judge as also by the Division Bench and, therefore, as the case of the petitioner stands on identical footing, the present Writ Petition also deserves to be allowed.
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Heavy reliance has been placed in the judgment delivered by this Court in the case of Lalsing Vs. State of Madhya Pradesh and others (W.P.No. 11238/2012, decided on 10/12/2013). The order passed by this Court in Lalsing (supra) reads as under :
Writ Petition No.1.1238/2012 10.12.2013 Smt. Ranjana Gawade, learned counsel for the petitioner. Smt. Anjali Jamkhedkar, learned Panel Lawyer for the respondents.
Heard.
Invoking the jurisdiction under Article 226 of the Constitution of India and seeking relief to direct the respondents to pay pension to the petitioner with arrears and interest thereon as well as to pay the gratuity, this petition has been filed.
The fact which is not in dispute is that the petitioner was appointed on the post of Gang Coolie in the respondent department on 01.06.1975. His service was not regularized and after completion of 35 years of service, he was retired on attaining the age of 62 years on 10.10.2010. In the meantime, Government issued a circular for regularization of Gangman and Gang Collie dated 01.12.1997 Even after issuance of the said circular, the benefit has not been extended to him of regularization. Now, the respondents have denied the pensionary benefits on account of not having regularization in the employment.
Learned counsel appearing on behalf of the petitioner has placed reliance on a Division Bench judgment of this court in the case of Han i• Narayan Sharma vs. State of MP passed in W.P.. No.2726/2011. As per the judgment dated
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09.12.2011 whereby, in. a similar circumstances relying upon a judgment of State of MP Vs. Mohammad Sadiq reported in 2010(4) MPLJ 367, directions to pay pensionary benefits in• the light of Mohammad Sadiq (supra) has been issued.
Respondents have filed their reply inter alia contending that the engagement of the petitioner is not in dispute but, because his services were not regularized, therefore, he is not entitled to get the pensionary benefits. It is said that the judgment of Hari Narayan Sharma (supra) is distinguishable from the facts of this case because the petitioner was not regularized in the employment. However, it is prayed that the petition filed by the petitioner be dismissed.
After hearing learned counsel appearing on behalf of the parties and on careful examination of the facts of the Division Bench judgment in the case of Hari Narayan Sharma (supra), which is relied upon by the petitioner, it is clear that in the said case also petitioner was engaged in 1957 and retired on 31.12.1997. On the date of retirement, his services could not be .regularized. Even then, this Court relying upon the judgment of Mohammad Sadiq (supra) extended the benefit of pension to him.
Learned Panel lawyer representing the Government is not in a position to defend the said judgment on the said fact. It is merely said that the judgment of the Division Bench is distinguishable.
After hearing learned counsel appearing on behalf of the parties and looking to the judgment of the Division Bench in the case of Hari Narayan Sharma (supra) wherein, this Court has observed as under:-
"We have heard learned counsel for the parties and perused the record.
The respondents in their reply have not
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disputed the fact that the petitioner was employed as Gang Man in the Public Works Department since the year 1957. This fact is also not in dispute that the petitioner had retired from service on reaching the age of superannuation on 31.12.1997. Thus, undisputedly the petitioner has served the respondents for more than 40 years.
It is also worth noting that the circular dated 01.1.2.1997, in respect of regularization of gangman, was issued when the petitioner, was working as gangman, but he was not given the benefit of the said circular without any justifiable reason. In terms of this circular the .petitioner is to be treated as a regular Gangman w.e.L 01.01.1996.
In the matter of Mohammad Sadiq (supra), the concerned employee • was appointed as daily wager in the year 1960 and was regularized on 01.01.1996 and had retired on 31.12.2002 and he was denied the benefit of pension on the same ground raising the plea that he had not completed the minimum period of qualifying service of ten years. This Court, after taking note of the provisions of the Pension Rules, 1979, held thus:
"10. On taking into consideration Rule 2(c) of the Pension Rules of 1979 it is luminously clear that a person can be said to be a permanent employee who has completed 15 years of sercie or more on or after 1st January, 1974 as contingency paid or a •work charged employee. Since undisputedly the petitioner was appointed as daily wager in the year 1960, hence in the year 1975 he has completed 15 years of his service. No doubt he was regularized vide Annexure R/2 on 1.1.1996, but before he was regularized he already qualified the qualifying service for the grant of pension. It is not at all in dispute
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that the qualifying service of 10 years as envisaged in the proviso to definition clause of permanent employee stated in Rule 2(c) of the Pension Rules of 1979, has been reduced to six years vide notification dated 30th January, 1996. But, according to us, the writ petitioner already qualified the qualifying service for obtaining the pension, and hence, according to us, the respondent has been rightly granted relief by the learned Writ Court.
11. Indeed, this aspect of the matter has already been taken note of in paras 4, 5 and 6 by the Division Bench of this Court in Shikrishan (supra) which has also been quoted by the learnedWrit Court. We do not find any merit in the contentions of the learned Additional Advocate General for appellants/State that the Pension Rules of 1976 would be applicable upon the contingency paid or work charged 'employee. If we go through the application of these Pension Rules of 1976 as envisaged in Rule 2 of the said Rules, we find that these Rules are not applicable to certain employees, who have been categorized (ii)(a) to (g).
According to clause (a) these Rules would not be applicable for the persons in a work charged establishment, and therefore, since the Pension Rules of 1976 are expressly made in applicable to those employees. According to us, learned Writ Court has rightly allowed the writ petition of the writ petitioner. The Full Bench of this Court in Vishnu Mutiya (supra) para 14 has also taken note of that the pension of Gangman would govern by the Pension Rules of 1979. needless to say the Pension Rules of 1979. Needless to say the respondent has been retired from the post of -Gangman."
In the above matter, the employee
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concerned was appointed on the same post subsequent to the petitioner and he has been granted the pensionary benefit therefore, the present petitioner cannot be made to suffer on account of inaction or delayed action on the part of the respondents.
We find that the case of the petitioner is covered by the earlier Division Bench judgment of this Court in the matter of Mohd. Sadiq (supra) and he is also entitled to the same benefit as has been extended in that case.
Accordingly, we allow this letter petition on the same terms by holding that the petitioner is entitled for the pension and direct the respondents to extend the necessary benefits to the petitioner as has been extended in the Matter of Mohd. Sadiq (supra) within 8 weeks from the date of receipt of a copy of this order."
In the considered Opinion of this Court and looking to the facts of this case also, it is clear that even after 35 years of the employment, his services were not regularized extending the benefit of circular dated 01.09.1997. In . the case of 'Hari Narayan Sharma also he was not regularized on the date of attaining the • age of superannuation,. however is not distinguishable„ in. the said case, in the light of the judgment of Mohammad Sadiq the benefits have been extended to the petitioner, thus, there is no option to this Court except to extend the similar benefits to the petitihn.er as directed in the case of Hari Narayan Sharma. by the Division Bench. • Accordingly, this petition stands allowed. It is directed that the respondents shall take appropriate steps to extend the benefit' of the pension to .the petitioner, in the light of the judgment of Mohammad Sadiq as well as Hari Narayan Sharma (supra). within a period of eight weeks
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from the date of receipt of certified copy of this order.
C.c. as per rules.
In the light of the aforesaid judgment, the present petitioner is also entitled for the similar benefit which has been extended to the writ petitioner in the case of State of Madhya Pradesh Vs. Mohammad Sadiq reported in 2010 (4) MPLJ 367 as well as to the writ petitioner in W.P.No. 11238/2012 Lalsing.
The exercise of extending similar benefits to the present petitioner be concluded within a period of six months from the date of receipt of certified copy of this order.
(S. C. SHARMA) JUDGE KR